not be disposed to shield him from the conflicting although reasonable demands of a foreign country within whose territory he may happen to be, so long as he remains therein.1 In the case of an adult, it will be found that if the claim to his allegiance has a just foundation, the retention of his national character, according to the view of the United States, does not depend upon his remaining within the physical control of his sovereign. Hence, until his expatriation, he may commonly invoke its aid to protect himself from the exactions of any other.2

In a broad sense international law limits the right of a State to impress its national character upon an individual, or to prevent that character from being lost or transferred. The freedom of action of each member of the family of nations is, however, wide. That circumstance, as well as the tendency of States to declare by statute what persons are deemed to be nationals by birth, and how nationality may be acquired or lost, serve to obscure from view the final test of the reasonableness of the local law.

Citizenship, as distinct from nationality, is a creature solely of domestic law. It refers to rights which a State sees fit to confer upon certain individuals who are also its nationals. When the Constitution or laws of the United States declare that persons born under specified circumstances, or changing their allegiance by certain processes, shall become American citizens, citizenship may be truly regarded as a source of American nationality; for the citizen of the United States is necessarily also a national of the United States. It is to be observed, however, that the United States claims as nationals numerous persons upon whom it has not conferred rights of citizenship. International law is concerned with American citizenship only in so far as it emphasizes or establishes simultaneously American nationality.

1 Double Allegiance, infra, § 372.

2 This is indicated in the attitude of the United States respecting the status of naturalized American citizens. The Right of Expatriation, infra, §§ 376379.

3 "National character, in legal and diplomatic discussion, usually is denoted by the term 'citizenship.' In most cases this is not misleading, since citizenship is the great source of national character. It is not, however, the only source. A temporary national character may be derived from service as a seaman, and also, in matters of belligerency, from domicil, so that there may exist between one's citizenship and his national character, for certain purposes, an actual diversity. . . . Citizenship, strictly speaking, is a term of municipal law, and denotes the possession within the particular State of full civil and political rights, subject to special disqualifications, such as minority or sex. The conditions on which citizenship is acquired are regulated by municipal law." Moore, Dig., III, 273.

According to the common law every child born "within the ligeance and jurisdiction" of the King of England was regarded as his subject.1 It is not true that all persons born within the King's domain were within his "ligeance and jurisdiction." Thus, the child of an alien enemy born in British territory within hostile military occupation was regarded as outside thereof; likewise the child born within the realm whose father was an alien, and at the time of the birth of the child, a diplomatic officer accredited to the Crown by a foreign sovereign.2 As these were, however, the only instances where persons born within the royal domain failed to acquire English nationality, it became natural to assert as a rule of law, commonly known as the jus soli, that, subject to these exceptions, a person became a natural-born subject by reason of his birth within the King's domain.3

(b)

§ 344. The Laws of the United States.

It was not until 1866 that any law was enacted in the United States indicating what persons born within its territory of alien

1 Calvin's Case, 7 Rep. 18a; A. Cockburn, Nationality, 7; A. V. Dicey, Conflict of Laws, 2 ed., 166-167; also authorities cited in United States v. Wong Kim Ark, 169 U. S. 649, 656; "De l'applicabilité du jus soli en matière de nationalité, by Richard Kleen, Rev. Gén., III, 429.

2 Calvin's Case, 7 Rep. 18 a; A. V. Dicey, Conflict of Laws, 2 ed., 167-168. Also Story, J., in Inglis v. Sailor's Snug Harbour, 3 Pet. 99, 155-156, 164.

"The exceptional and unimportant instances in which birth within the British dominions does not of itself confer British nationality are due to the fact that, though at common law nationality or allegiance in substance depended on the place of a person's birth, it in theory at least depended, not upon the locality of a man's birth, but upon his being born within the jurisdiction and allegiance of the king of England; and it might occasionally happen that

parentage were to be regarded as nationals. Up to that time the opinion was oftentimes expressed, judicially and otherwise, that the rule of the common law would be followed, in cases where the parents were temporarily residing in the United States at the time of the birth of the child,' as well as in those where they were domiciled therein.2

In 1866 the Civil Rights Act became a law. According to it 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.3

In 1868 the Fourteenth Amendment to the Constitution was declared ratified by a joint resolution of the Congress and was duly promulgated. It provided 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.1

Prior to 1897, the Supreme Court of the United States had made no decision respecting the application of the Fourteenth Amendment to a child born within the United States to foreign parents. In that year, however, that Court, in the case of United

a person was born within the dominions without being born within the allegiance, or, in other words, under the protection and control of the Crown." A. V. Dicey, Conflict of Laws, 2 ed., 781.

1 See, for example, Lynch v. Clarke, 1 Sandf. Ch. 583; Munro v. Merchant, 26 Barb. 383, 400.

2 See Opinion of Attorney-General Black, 9 Ops. Attys.-Gen., 373; Opinion of Attorney-General Bates, 10 Ops. Attys.-Gen., 382; Report on Citizenship of the United States, 73; Van Dyne on Citizenship, 1-7.

Declared Mr. Justice Gray, in United States v. Wong Kim Ark, 169 United States, 649, 674: "It is beyond doubt that, before the enactment of the Civil Rights Act of 1866 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."

3 Rev. Stat. § 1992; 14 Stat. 27, U. S. Comp. Stat. 1918, § 3946. Section 1. See Mr. Bayard, Secy. of State, to Mr. de Bounder, Belgian Minister, April 2, 1888, For. Rel. 1888, I, 48, Moore, Dig., III, 277.

5 The Court had, however, in the case of Elk v. Wilkins, 112 U.S. 94, expressed the opinion "that an Indian born a member of one of the Indian tribes within the United States, which still existed and was recognized as an Indian tribe by the United States, who had voluntarily separated himself from his tribe, and taken up his residence among the white citizens of a State, but who did not appear to have been naturalized, or taxed, or in any way recognized or treated as a citizen, either by the United States or by the State, was not a citizen of the United States, as a person born in the United States and subject to the jurisdiction thereof, within the meaning of the clause in question." Gray, J., in United States v. Wong Kim Ark, 169 U. S. 649, 680.

States v. Wong Kim Ark, decided that a child born in the United States of parents of Chinese descent who, at the time of his birth, were subjects of the Emperor of China, and domiciled within the United States, where they were engaged in business, became, at the time of his birth, a citizen of the United States, by virtue of the first clause of the Fourteenth Amendment.' In the opinion of the Court, delivered by Mr. Justice Gray, it was stated that the Amendment should be interpreted in the light of the common law; that the rule of that law respecting nationality by birth of a child of alien parents was in force in all of the English Colonies on the American continents until the Declaration of Independence, and continued to prevail thereafter in the United States; that there was little ground for the theory that at the time of the adoption of the Fourteenth Amendment, 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; that in the forefront both of the Amendment and of the Civil Rights Act of 1866, the principle of citizenship by birth within the domain was reaffirmed in the most explicit and comprehensive terms; that notwithstanding considerations that might influence the legislative or executive branch of the Government to decline to admit persons of the Chinese race to the status of citizens, there were none that could constrain or permit the judiciary to refuse to give full effect to the peremptory and explicit language of the Amendment.2

There appears to be no reason to anticipate a different conclusion in case the alien parents of a child born in the United States were temporary sojourners, and not domiciled therein.3 The Department of State is not, at the present time, in view of the

1 169 U. S. 649.

2 Id., 653-654, 657, 658, 667, 675, 694. See, also, Benny v. O'Brien, 58 N. J. L. 36; In re Giovanna, 93 Fed. 659. Also In re Look Tin Sing, 21 Fed. 905, and other cases of children born in the United States of Chinese parentage, cited in Report on Citizenship of the United States, by Messrs. Scott, Hill and Hunt, 73-74. It is there observed that the question relative to citizenship of a child of parents who may not become citizens has "arisen in connection with alien parents who were domiciled in this country, and not in connection with persons here temporarily. Moreover, the cases found have always concerned the citizenship of persons of Chinese parentage."

3 Inasmuch as the Supreme Court interprets the Fourteenth Amendment in the light of the common law, and as that law pays no heed to the domicile of the parents in determining the nationality of the child, it would be difficult if not impossible for that Tribunal to raise a distinction based upon the domicile of the former, without abandoning the theory of interpretation which has been adopted. Nor do the dicta contained in the opinion of the Court in United States v. Wong Kim Ark, 169 U. S. 649, at 682, 687 and 693, encourage belief that such a change of theory is to be anticipated.

decisions of the courts, disposed to raise a distinction based upon the domicile of the parents.1

Following the exceptions of the common law, a child born in the United States would not be regarded as acquiring American nationality by birth, in case either the alien father was a diplomatic officer accredited to the United States,2 or in case the parents were alien enemies, and the birth of the child occurred in a place under hostile military occupation.3

(2)

§ 345. By Right of Blood. Jure Sanguinis.

By right of blood, jure sanguinis, a child may at birth acquire the nationality of his father. Numerous States regard as their respective nationals children born to their own subjects or citizens in foreign lands. The United States makes such a claim, conferring its citizenship as well as its nationality upon children

1 Mr. Bacon, Acting Secy. of State, to Mr. Towle, American Ambassador at Berlin, Mar. 8, 1907, For. Rel. 1907, I, 516; also Mr. Fish, Secy. of State, to Mr. Marsh, May 19, 1871, MS. Inst. Italy, I, 350, Moore, Dig., III, 278; Mr. Adee, Acting Secy. of State, to Mr. Iddings, Chargé at Rome, Aug. 8, 1901, For. Rel. 1901, 303. Compare Mr. Frelinghuysen, Secy. of State, to Mr. Kasson, Minister to Germany, Jan. 15, 1885, For. Rel. 1885, 394, Moore, Dig., III, 278; Mr. Bayard, Secy. of State, to Mr Winchester, Minister to Switzerland, Nov. 28, 1885, For. Rel. 1885, 814, Moore, Dig., III, 279.

Relative to the case of a foundling whose existence first became known in Philadelphia, and who was, therefore, regarded as a native citizen of the United States, see Mr. Hay, Secy. of State, to Mr. Leishman, Minister to Switzerland, July 12, 1899, For. Řel. 1899, 760, Moore, Dig., III, 281.

2 Geofroy v. Riggs, 133 U. S. 258, 264; United States v. Wong Kim Ark, 169 U. S. 649, 682; Mr. Wharton, Acting Secy. of State, to Mr. Grant, Minister to Austria-Hungary, Aug. 10, 1891, For. Rel. 1891, 21, Moore, Dig., III, 281. See, also, Mr. Bacon, Acting Secy. of State, to Mr. White, American Chargé, Feb. 15, 1907, For. Rel. 1907, I, 38.

3 United States v. Wong Kim Ark, 169 U. S. 649, 682; Inglis v. Sailor's Snug Harbour, 3 Pet. 99. In the latter case (p. 156) Mr. Justice Story said, in the course of the opinion of the Court: "Thus, 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 re-conquest, or re-occupation 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."

The laws of several States making such a claim are enumerated in Appendix III of the Report on Citizenship of the United States, by Messrs. Scott, Hill and Hunt.

Concerning the English statutes, see Sir F. T. Piggott, Nationality, London, 1907, 47-56.

According to the Belgian law on the acquisition and loss of nationality, of June 8, 1909, "a child born, even in a foreign country, of either a Belgian father or a Belgian mother, if the father has no fixed nationality", is deemed to be a Belgian. See text in Am. J., IV, Supp., 167. See, also, § 4, Part II, of German Imperial and State Citizenship Law of July 22, 1913, Am. J., VIII, Supp., 217.