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deemed and considered to be citizens of the United States, provided that the right of citizenship shall not descend to persons whose fathers never resided in the United States. Within the sovereignty and jurisdiction of the United States such persons are entitled to all the privileges of citizens; but while the United States may by law fix or declare the conditions constituting citizens of the country within its own territorial jurisdiction, and may confer the rights of American citizens everywhere upon persons who are not rightfully subject to the authority of any foreign country or government, it ought not, by undertaking to confer the rights of citizenship upon the subject of a foreign nation who had not come within our own territory, to interfere with the just rights of such nation to the government and control of its own subjects. If, by the laws of the country of their birth, children of American citizens born in such a country are subjects of its government, the legislation of the United States will not be construed so as to interfere with the allegiance which they owe to the country of their birth while they continue within its territory. If, therefore, such a person, who remains a resident in the country of his or her birth, applies for a passport as a citizen of the United States, such passport will be issued in the qualified form shown in Form No. 11.”
Consular Regulations of the United States, 1881, sec. 173.
the bearer to ask the aid and protection of the United States was
Sec. 173, above quoted, first appears as sec. 115 of the Consular Regulations of 1870, p. 40. It also forms sec. 115 of the Consular Regulations of 1874, p. 31. Similar directions were embraced in sec. 131 of the printed instructions of 1885 to the diplomatic representatives of the United States.
For these sections there was substituted by a circular of the Department of State of June 29, 1885, the following paragraph:
“ It is provided by law that “all children” born or hereafter born out of the limits and jurisdiction of the United States, whose fathers were or may be, at the time of their birth, citizens thereof, are to be declared to be citizens of the United States; but the rights of citizenship shall not descend to children whose fathers never resided in the United States.' That the citizenship of the father descends to the children born to him when abroad is a generally acknowledged principle of international law.” a
a In the statute the word persons is used.
This quotation is inaccurate, the statute reading shall be deemed and considered and are hereby declared to be," etc.
c This is in the form of a proviso in the original statute, supra.
This section was carried into the Consular Regulations of 1888, sec. 146, and is preserved, with some abbreviation, in the Consular Regulations of 1896, sec. 138, p. 49, and the Instructions to the Diplomatic Officers of the United States of 1897, sec. 138, p. 52.
The object of the change made in the consular and diplomatic instructions in 1885 is set forth in a report of Dr. Francis Wharton, then solicitor of the Department of State, of May 4, 1885, in which it is suggested that the instructions in the form in which they previously stood might be construed as implying a denial of the civil status derived from domicil in matters of guardianship, legitimacy, marriage, and succession to property. His report contains the following statement:
“ The correct rule I apprehend to be that the children born abroad of
parents domiciled in the United States partake of their father's domicil, and children born abroad of citizens of the United States partake of their father's citizenship. The possession of these rights continues until the infant arrives at the age of twenty-one, at which age he is entitled to make election as to what nationality and domicil he will accept, which election must be regarded as final. It is true that such children, like all other citizens of the United States residing in a foreign land, may be regarded as bound to render the duty of local obedience. But with the above limitation as to election they are no more subject to the domiciliary municipal laws of such foreign land, or clothed with its nationality, than are any other citizens of the United States temporarily residing abroad. As will be seen by authorities in an exhibit attached hereto, these views are sustained not only by rulings of our own and English courts, but by the opin
ions of leading jurists who are experts in this branch of law. “ It is true that in a letter of Mr. Hoar, when Attorney-General, dated
June 12, 1869, we have the following statement : “ If, therefore, by the laws of the country of their birth children of Amer
ican citizens, born in that country, are subjects of its government, I do not think that it is competent to the United States by any legislation to interfere with that relation, or by undertaking to extend to them the rights of citizens of this country, to interfere with the allegiance which they may owe to the country of their birth while they continue within its territory, or to change the relation to other foreign nations which, by reason of their place of birth, may at any time exist. 13 Op. Atty. Genl. 89. See, to same effect, letter of Mr. Fish, Aug. 25,
1873. (For. Rel. U. S., 1873-4, vol. 2, p. 1192.) * So far as this statement bears on the question of passports, in reference
to which it was made, I do not propose to discuss it, though even in this limited relation I doubt its accuracy. But I do unreservedly maintain that by the law of nations no legislation of a foreign state can subject either a person domiciled in one of the United States, temporarily residing in such foreign country, or a child born to him
a Circulars, III. 237.
during such temporary residence, to the municipal laws of such foreign country, so as to divest him of his home status, and to impose
on him the status of the country in which he is temporarily resident. " The consequences of the latter doctrine are so disastrous that it is hard
to believe that it was deliberately intended to have been advanced. Were a person domiciled in one of our States (whether an adult or a minor) subjected to the municipal laws of a foreign country, in which he is temporarily resident, and clothed with its status, he might be placed permanently under the control of a guardian appointed by the authorities of such country; his legitimacy would be subject to its laws; his marriage would be invalid if made such by its laws; by its laws would the succession to his property be determined ; by its laws, as one of its subjects, would his property
be distributed in case of his death. * For this Department, in its consular regulations and diplomatic instruc
tions, to declare otherwise, would not only contravene the rulings of our courts and the opinions of the great body of modern international jurists, but would interpose a serious difficulty in the way of the obtaining, by persons domiciled in one of the United States, the rights abroad to which they are entitled by the law of nations and by the rulings of domestic courts. We will suppose, for instance, that a person domiciled in the United States, but temporarily resident abroad, is subjected to personal taxation, or to other laws determining status in the place of his temporary residence; or that an effort is made to subject his legitimacy, or the legality of his marriage, to the laws of such temporary residence; or to limit his business capacity by such laws, or, on his death, to declare that his estate by such laws is to be distributed. This is contested ; and to support this adverse contention, we will suppose that it is said by the authorities of such place of temporary residence: Undoubtedly by the law of nations personal status is determined by the place of domicil, but by your consular regulations and diplomatic instructions you preclude yourselves from claiming for persons domiciled in your States this right.' But that such a concession should not
be made by this Department I maintain for the following reasons : “1. Even supposing the question were one of doubt, it ought not to be
decided in this summary way against persons domiciled under our
flag. “2. The case is one belonging to the States, as domicil is incident to resi
dence in a State (or Territory, as the case may be), and not to residence in the United States as a whole. A person, for instance, may be domiciled in the State of New York, and thus become enveloped in the municipal law of New York; but except as domiciled in New York, he cannot be domiciled in the United States. Domicil by the law of nations, it must be remembered, is residence within a particular state, with the intention to make it a final abode. It may or may not be coupled with domestic political privileges. Domicil, however, and not the possession of political privileges, internation
ally determines status. “ But while intention to permanently remain is an essential incident of
domicil, this is not inconsistent with temporary absence. It is in relation to persons temporarily absent, and to their children born during such temporary absence, that the rules I have cited bear harshly in denying to them rights to which they are entitled by the law of nations.
“This leaves the question of status in such cases to the courts, unpreju
diced by any utterances from this Department. It may be that a distinction now taken in England between civil and political domicil may be hereafter internationally accepted, and that it may consequently be held that while domicil without naturalization imposes a civil status, determining municipal rights, it does not impose political status conferring political immunities, e. g., relief from military or police duties. But be this as it may, no statement should be permitted to remain in the records of this Department sanctioning the view that a person domiciled in the United States is by our action precluded from claiming the municipal rights he is entitled to by the rules of private international law." (17 MS. Opinions of Solicitors of Dept. of State, 305.)
With regard to this paper, it may be observed, in the first place, that a sharp distinction is made in laws and judicial decisions between the civil status derived from domicil and the political status derived from citizenship. This distinction is maintained not only in England and in the United States, but may also be found in various codes of Continental Europe. In some cases, indeed, as in Italy (see infra, p. 811), citizenship is made the test of civil as well as of political status; but in no case, it is believed, is political status made to depend upon the civil status of the individual, as derived from domicil, under the rules of private international law. In the second place, it is to be noted that citizenship is the creature of municipal and not of international law. It is true that a person may derive a qualified nationality from the rules of international law in certain relations, particularly in matters of prize; but this is a different thing from citizenship. It has never been supposed, for instance, that a passport might be issued to a British subject as a citizen of the United States, because, by reason of his having a belligerent domicil in the United States, his property perchance might be subject to seizure and confiscation on the high seas in a war to which the United States was a party.
The opinion of Attorney-General Hoar referred, as is admitted, to an application for a passport, and the language which he employs is appropriate to that subject. He speaks of “ citizens” and subjects," and of the “allegiance” which they owe. These words fairly exclude the idea that he intended to deny to any person the civil rights derived from domicil, the determination of which rights, as Dr. Wharton observes, may be left, certainly primarily, to the courts. Passports are granted to an individual as an evidence of his political, not of his civil, status, and their issuance therefore is based, not on domicil, but on citizenship. By the laws of the United States they can be granted only to persons owing allegiance.
The doctrine of “election” necessarily implies the existence of a double allegiance. This condition naturally arises where a person is born in one country to a father who is a citizen of another country. By rules of municipal law, which generally prevail, such a person has two citizenships by birth—(1) citizenship by virtue of the place of birth (jure soli), and (2) citizenship by right of blood (jure sanguinis), i. e., by virtue of the father's nationality. Unless this be so, the child on attaining his majority has nothing to elect. So far as domicil may play any part in the matter, its general tendency would seem to be to enhance the claim of the country of residence, since it can hardly be assumed that a person will usually be found to be domiciled in a country other than that in which he lives.
“ Robert W. Wilcox, Alexander Smith, and several others, born here of American fathers, have appealed for protection, which I have been unable to extend, they being at present under foreign jurisdiction, with no law or treaty exempting them from the usual rule."
Mr. Willis, min. to Hawaii, to Mr. Gresham, Sec. of State, March 7,
1895, For. Rel. 1895, II. 850, in relation to persons arrested and held under martial law for complicity in the insurrectionary plot in Hawaii in 1895.
Although Lazarus Marks, a native of Prussia, but a naturalized citizen of the United States, had, by reason of his permanent residence in Guatemala since 1870, apparently renounced his naturalization and had ceased to be entitled to an American passport, it was held that his minor sons, although they were natives of Guatemala, were, by virtue of section 1993 R. S., entitled to passports as citizens of the United States until, by attaining their majority, they became “ competent to elect another nationality.”
Mr. Adee, Acting Sec. of State, to Mr. Combs, No. 71, Sept. 15, 1903, For.
Rel. 1903, 595, citing Mr. Hill, Acting Sec. of State, to Mr. Merry,
Rel. 1901, 421.
Rep., No. 16, Aug. 30, 1904, For. Rel. 1904, 36, in relation to the case
While the Department of State holds that the minor children of an American citizen who has taken up a permanent residence abroad are by virtue of section 1993, Revised Statutes, entitled during minority to passports, yet the Department has ruled: “ If born after the father has become the subject or citizen of another power, or after he has in any way expatriated himself, the children born abroad are to all intents and purposes aliens, and not entitled to protection from the United States." (For. Rel. 1873, II. 1191.) And again: “If the father has, at the time of the birth of a son, abandoned his citizenship in the United States, the son can make no claim to such citi