band's national country, citizenship during marriage has been held to continue unchanged after widowhood.' If, however, as a widow she continues her domicil in or returns permanently to her native country, under whose law her original nationality reverts, international commissions have almost uniformly held that not the nationality of her deceased husband (which can have no obligatory exterritorial effect), but the law of her native country and actual and continued domicil governs her citizenship.2

$269. Citizenship at Birth.

CHILDREN

It is not within the purview of this work to discuss the municipal law of citizenship. Nevertheless, inasmuch as the international aspects of citizenship are often necessarily involved in the matter of diplomatic protection, it seems desirable briefly to notice some of the principal features connected with the acquisition of American citizenship and title to protection.

Citizenship is acquired by birth or naturalization.

Citizenship

by birth may be acquired either by birth in the United States or by birth abroad to American citizens.3 The effects of a conflict with the

1 Brand (Gt. Brit.) v. U. S., May 8, 1871, Moore's Arb. 2487, Hale's Rep. 18; Bowie, ibid., Moore's Arb. 2486, Hale, 17.

2 The majority of the British-American commission of 1871 held that the national character of the widow acquired by marriage remained unchanged, regardless of domicil, apparently. Calderwood (Gt. Brit.) v. U. S., May 8, 1871, Moore's Arb. 2485, Hale's Rep. 18. Mr. Frazer, American commissioner, dissented in this case, in which a widow of American origin had always remained domiciled in the U. S. Mr. Frazer believed that in such case her national character reverted. It must be remembered that in 1871, the U. S. had no law providing for readmission to American citizenship of one who had become an alien through her marriage. Ralston, Umpire, disapproved of the Calderwood decision in Brignone (Italy) v. Venezuela, Feb. 13, 1903, Ralston, 717. Venezuela, in which many of the cases have arisen, has for years had a law by which the Venezuelan citizenship of the native domiciled widow of an alien reverts. In support of the principle in the text see de Hammer and de Brissot (U. S.) v. Venezuela, Dec. 5, 1885, Moore's Arb. 2456, 2460–2461; Willett (U. S.) v. Venezuela, ibid. 2254 (dictum, claim disallowed as widow; but allowed as administratrix); Massiani (France) v. Venezuela, Feb. 19, 1902, S. Doc. 533, 59th Cong., 1st sess., 211; Stevenson (Gt. Brit.) v. U. S., Feb. 13, 1903, Ralston, 444, 445; Brignone (Italy) v. Venezuela, Feb. 13, 1903, Ralston, 716, 717; Miliani (Italy) v. Venezuela, ibid. 760; Poggioli (Italy) v. Venezuela, ibid. 866.

See Van Dyne, Citizenship, Rochester, 1904; Wharton, § 183 et seq., Moore's

law of other countries by which dual nationality ensues have already been, to some extent, considered.1

According to the civil rights Act of April 9, 1866,2 "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," and according to the Fourteenth Amendment to the Constitution, adopted in 1868, "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 appear to be declaratory of the common law. Yet on several occasions the courts and the Department of State appear to have misinterpreted the clauses "not subject to any foreign power" and "subject to the jurisdiction" by construing them so as to exclude from citizenship the children born in this country of alien parents, according to whose national law their children became subjects jure sanguinis. The uniform construction of the law at the present time confers citizenship upon all persons (not tribal Indians) born in the United States, even of aliens, permanently or temporarily here resident, and interprets the clause "subject to the jurisdiction," as excluding merely children born in places enjoying exterritoriality, such as foreign legations or public vessels.5

4

As has been observed, when a child born in this country of alien parents is taken abroad at an early age to the country of his parents, by whose national law he is deemed a subject jure sanguinis, and he continues there to reside, a right of election of nationality arises at Dig. III, §§ 373-374; Report of Citizenship Board, H. Doc. 326, 59th Cong., 2nd sess. 73-79.

1 Supra, § 253 et seq.

2 R. S., § 1992.

3 Dicta in Slaughter-House Cases, 16 Wall. 73, and in Elk v. Wilkins, 112 U. S. 99, briefly discussed by Van Dyne, op. cit., 12-15. See also Hausding's case, For. Rel., 1885, 394, and Greisser's case, For. Rel., 1885, 814. An account of the development of the American law of citizenship by birth in the U. S. is given by Van Dyne, 3 et seq.

4 Lynch v. Clark, 1 Sandf. Ch. 583; McCreery v. Somerville, 9 Wheat. 354; In re Look Tin Sing, 10 Sawyer, 353, 21 Fed. 905, and the great case of U. S. v. Wong Kim Ark (1898), 169 U. S. 649. See Report of Citizenship Board, 73–74; Van Dyne, 17-24; and Moore's Dig. III, 280.

5 Geofroy v. Riggs, 133 U. S. 258, 264; Act'g Sec'y Wharton in For. Rel., 1891, 21.

majority. By failing to manifest his election of American citizenship, and by continuing to reside abroad after majority, he loses whatever right to American protection he may have had during minority. If no question of dual nationality arises, it would seem that the mere fact of long-continued residence abroad would not deprive him of his American citizenship or protection. It is quite probable, however, that upon return to this country even a considerable time after majority, he would be deemed an American citizen in this country.

§ 270. Foreign-born Children of American Citizens.

Citizenship is also conferred, at birth, upon children

"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 . . . but the rights of citizenship shall not descend to children whose fathers never resided in the United States." 2

There are several conditions necessary to complete title to American citizenship under this statute. First, the father must have been a citizen at the birth of the child. If, before the birth of the child, his citizenship was renounced or abandoned, or if he in any way expatriated himself, the child is born an alien. If, however, the expatriation of the father occurs after the birth of the child, it has been held that the child is not thereby irrevocably deprived of American citizenship, but that he may, upon attaining majority, revive his inchoate right to American citizenship by returning to the United States, thus manifesting his election of American citizenship. Notwithstanding the repeated assertion of the Department that a minor is incompetent to elect nationality, it is certain that by returning to the United States during minority, the child would be regarded by our courts as an 1 Supra, § 259. See also H. Doc. 326, 59th Cong., 2nd sess., 74-76.

2 R. S., § 1993, H. Doc. 326, 59th Cong., 2nd sess., 77-80 and American decisions there cited. Van Dyne, Citizenship, 32-49; Moore's Dig. III, §§ 374, 426. The posthumous child is also held to be an American citizen. Rosen's case, 1911.

314 Op. Atty. Gen. 295, and infra, § 319. See also Warren-Lippit's case, For. Rel. 1910, 71, 76.

4

Supra, § 259. It would seem that a widowed mother cannot, without the approval of the court of the child's domicil, change the domicil and nationality of her minor child. Sec'y Bayard to Mr. Liebermann, July 9, 1886, Moore's Dig. 541, citing von Bar and Foelix, and Lamar v. Micou, 112 U. S. 542.

American citizen, and if he subsequently went abroad, would be entitled to American protection.1 The status, during minority, of the foreign-born child of a native American citizen who, after the birth of the child, expatriates himself, does not appear to have come before the American courts.

To confer citizenship upon a child born abroad, the father must have resided in the United States. This limitation upon the right of transmitting citizenship indefinitely was intended to prevent the residence abroad of successive generations of persons claiming the privileges of American citizenship while evading its duties. It seems not to have been judicially determined whether the residence of the father in the United States must necessarily have preceded the birth of the child, but by the fact that the statute provides that citizenship shall not "descend," it is believed that the residence prescribed must have preceded the birth of the child, and such has been the construction of the Department.3

4

As will be observed more fully hereafter, an exception to the application of this provision of § 1993 has until recently been made in the case of children born in distinctively American communities in Turkey, in which citizenship was deemed heritable from generation to generation, regardless of the father's non-residence in the United States. In 1914, however, the Department reversed its previous ruling as laid down since 1887, and held § 1993 to be universally applicable, without exception.5

§ 271. Election of Citizenship under § 6 of Act of 1907.

According to § 6 of the Act of March 2, 1907, foreign-born children who are declared citizens by § 1993 of the Revised Statutes are "required upon reaching the age of eighteen years to record at an American consulate their intention to become residents and remain citizens of the United States and . . . to take the oath of allegiance to the 1 Supra, § 258.

2 Van Dyne, op. cit., 34.

See, however, State v. Adams, 45 Iowa, 99, in which this point does not appear to have been considered.

4 Infra, § 333.

Special Consular Instruction, No. 340, July 27, 1914, Citizenship of children born of American fathers who have never resided in the United States.

1

United States upon attaining their majority." As has been explained,2 the Department of State has construed the word "upon" to signify "within a reasonable time after," so that the declaration of intention

to become residents and remain citizens of the United States" may be made at any time after the minors concerned have reached the age of eighteen and before they take the oath of allegiance; 3 and the oath of allegiance may be taken within a reasonable time after reaching majority. A minor over eighteen, therefore, would practically be entitled to a passport whenever he made his declaration; and even for a reasonable time after majority, if he is then prepared also to take the oath of allegiance.

4

Notwithstanding this statutory provision, which relates merely to the right of protection, municipal courts may well hold such persons to be citizens of the United States. When these persons, after reaching the age of majority, continue to reside abroad and have no definite intention to reside in the United States, registration and passports are uniformly denied them. Should the minor have returned to the United States to reside, and subsequently, after majority, goes abroad, even to the country of his birth, he will be considered as having perfected his status as an American citizen, and as having full title to American protection. In one case where a circus performer, born abroad of an American citizen, applied for a passport at the age of twenty-nine, but stated that he intended to come to the United States, the Department authorized the issuance of the passport on the ground that he had the animus revertendi, had not apparently established himself in any other country, and that his pursuits required a nomadic life.6

5

1 Circular, Children of citizens born abroad, April 19, 1907, For. Rel., 1907, I, 9. 2 Supra, p. 587.

3 Circular, March 14, 1911. This interpretation practically nullifies the statutory requirement of recording intention prior to reaching full age, but does not entirely eliminate the inconsistency with numerous rulings of the Department to the effect that a minor is incompetent to make a final election of nationality.

In Albany v. Derby, 30 Vermont, 718, the court declared that if the foreignborn child did not return to America until after he was of age, he was an alien.

" Crowninshield's case, Mr. Gresham, Sec'y of State, to Capt. Crowninshield, Feb. 23, 1895, For. Rel., 1895, I, 426. See also Moore's Dig. III, 284–285.

Case of Clemens Beling, For. Rel., 1907, 975.