American woman. In 1871 the family removed to Europe, and afterwards resided at various capitals, where the father served in a diplomatic capacity. In 1891 the son desired to come to the United States and exercise the privileges of citizenship. The Department of State expressed the opinion that he could do so only after being naturalized, since a child born in the United States to a diplomatic officer was not "subject to the jurisdiction thereof" in the sense of the Fourteenth Amendment.

Mr. Wharton, Act. Sec. of State, to Mr. Grant, min. to Aust.-Hung., Aug. 10, 1891, For. Rel. 1891, 21.

(2) BY RIGHT OF BLOOD.

§ 374.

By section 1993 of the Revised Statutes of the United States, incorporating the provisions of the act of February 10, 1855, "All children heretofore 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 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."

See Ludlam r. Ludlam, 26 N. Y. 356; Albany . Derby, 30 Vt. 718;
Ware . Wisner, 50 Fed. Rep. 310.

Children born abroad of persons once citizens of the United States, but who have become citizens or subjects of a foreign power, are not citizens of the United States, nor entitled to protection as such.

Williams, At. Gen., 1873, 14 Op. 295.

"The fourteenth amendment to the Constitution declares that"All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.'

"It is provided by the act of 1855 (10 Stat. at Large, p. 604) that persons born out of the limits and jurisdiction of the United States, whose fathers at the time of their birth are citizens of the United States, shall be 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.

"I will presently refer to this proviso.

"Within the sovereignty and jurisdiction of the United States the persons contemplated by the act are entitled to all the privileges of citizenship; but while the United States may by law fix or declare the conditions constituting citizenship within its own territorial jurisdiction, and may confer the rights of American citizenship everywhere upon persons who are not rightfully subject to the authority of any

foreign country or government, it may be safely assumed that Congress did not contemplate the conferring of the full rights of citizenship upon the subject of a foreign nation who had not come within our territory, so as to interfere with the just rights of such nation to the government and control of its own subjects.

"It is a well-established principle of public law that the municipal laws of a state have no effect within the limits of another power, beyond such as the latter may think proper to concede to them.

"No foreign state can by its municipal legislation release from his obligation to the United States a person born within its territory and its jurisdiction who has continued from his birth to reside therein; and while he resides therein, and if, by the laws of the country of their birth, children of American citizens born in such country are subjects of its government, the legislation of the United States should 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, or until they shall have relieved themselves of that allegiance and have assumed their rights of American citizenship, in conformity with the laws and Constitution of the country, and have brought themselves personally within its jurisdiction.

"I have above referred to the proviso to the act of 1855. It is evident from this that the law-making power not only had in view the limit (above referred to) to the efficiency of municipal law in foreign jurisdiction, but intended that a distinction be observed between the right of citizenship, declared by the act of 1855, and the full citizenship of persons born within the territory and jurisdiction of the United States, for those declared to be citizens by the act could not transmit citizenship to their children without having become residents within the United States; the heritable blood of citizenship was thus associated unmistakably with residence within the country, which was thus recognized as essential to full citizenship.

"The provisions of the fourteenth amendment of the Constituțion have been considered. This amendment is not only of more recent date, but is a higher authority than the act of Congress referred to, and if there be any conflict between them, or any difference, the Constitution must control, and that makes the subjection of the person of the individual to the jurisdiction of the Government a requisite of citizenship.

"It does not necessarily follow from this that the children of American parents born abroad may not have the rights of inheritance, and of succession to estates, although they may not reside within or ever come within the jurisdiction of the United States. That question is not within the present consideration.”

Mr. Fish, Sec. of State, to Mr. Washburne, min. to France, June 28, 1873,
For. Rel. 1873, I. 256.

"Your letter in regard to the possibility of a claim on the part of the French Government to exact military service of your son, Caspar Schuyler Crowninshield, on the ground of his birth in France and personal residence there, has been received.

"The clause of the French law of nationality which the secretary of embassy seems to suppose applicable to your son's case (article 8) reads as follows: These are French

6

"4. Any person born in France of foreign parents and who at the time of his majority is domiciled in France, unless within the year following such majority, as fixed by French law, he has declined French nationality and proved that he has retained the nationality of his parents by means of an attestation in due form from his Government, which attestation shall remain attached to his declaration, and by producing, besides, if there is occasion to do so, a certificate showing that he has complied with the call to perform military service in accordance with the military laws of his country.

"This provision appears to concern those persons who, being born in France of foreign parents, continue to dwell there during minority, and treating them as invested with a dual status, gives them one year after attaining majority within which to elect either French nationality or that of their parents. It does not appear to affect those who, like your son, have been removed from France soon after birth and thereafter dwell and come of age in the country of their parents' allegiance. Your son, born at Nice, June 1, 1871, was taken thence by his parents a few weeks later, July 4, 1871, and never returned to France until last October, when, being over 23 years of age, he went to Paris as an art student.

"No claim to your son's military service appears to have been made by the French authorities, but a copy of your letter and of this reply will be sent to the United States ambassador at Paris, and Mr. Eustis will be instructed that, in the event of any such claim, this Government would hold that your son, being born a citizen of the United States, under our laws has conserved his status and perfected it, as against any conflicting claim on the part of France, by continuous domicil in the United States during minority and entrance upon all the rights of American citizenship on attaining majority.

"Without discussing the hypothetical question whether, in such a case, option and declaration are required in France within the year after attaining majority, it is clear that the year having elapsed without your son having been within French jurisdiction no retroactive declaration can now be demanded of him. He is to be regarded as having precisely the same status in France as any other adult citizen of the United States visiting that country; and Mr. Eustis will be instructed to attest the fact of such citizenship by the issuance of a passport to him on the usual evidence of right thereto."

Mr. Gresham, Sec. of State, to Captain Crowninshield, U. S. N., Feb. 23, 1895, For. Rel. 1895, I. 426.

As stated in bis letter, Captain Crowninshield, at the time of his son's birth, was serving on a U. S. man-of-war and his wife was residing temporarily at Nice.

See, as to another case of a child born to American parents temporarily abroad, Mr. Hill, Act. Sec. of State, to Mr. White, No. 1210, June 14, 1901, MS. Inst. Germany, XXI. 298.

T., a native of Germany, was naturalized in the United States in 1887. In 1889, while on a visit with his wife to Germany, a son was born to him. The child was soon afterwards brought to the United States. In 1901 T., who contemplated sending his son to Germany for purposes of study, sought the interposition of the United States in order that he might be assured that the American citizenship of his son would be recognized by the German Government. The German foreign office stated that there was nothing to prevent the American citizen in question from making a prolonged stay in Germany.

For. Rel. 1901, 179.

A person born on board of a United States vessel, of parents who are citizens of the United States, but who are, at the time, in a foreign country, not with the design of removing thither, but only having touched there in the course of a voyage which the father has made as captain of the vessel, is to be regarded as a citizen of the United States.

United States r. Gordon, 5 Blatch. 18.

Under § 1993 nationality is not inherited through women; and an illegitimate child born abroad to an American woman is not a citizen of the United States.

Illegitimacy.

Opinion of Mr. Lowndes, for the Commission, United States and Span.
Claims Com. (1871), Moore, Int. Arbitrations, III. 2462; Mr. Whar-
ton, Assist. Sec. of State, to Mr. Lewis, Dec. 24, 1891, 184 MS. Dom.
Let. 497.

July 30, 1901, the Swiss legation at Washington made an inquiry as to the nationality of Louis Rover, who was born out of wedlock in France, in 1888, his father being Léon Jean Rover, a native citizen of the United States, and his mother a French woman. The parents were married in 1891, in London, but they afterwards separated, the child being left with the mother. The legation inquired whether by the laws of New York he was legitimatized by the marriage of his parents and had thus become an American citizen. The Department of State replied:

"The attorney-general of the State of New York, under date of the 16th instant, declares it to be his opinion that by section 18 of the domestic regulations law of the State of New York, chapter 272 of the laws of 1896, as amended by chapter 725 of the laws of 1899, an illegitimate child, whose parents have not heretofore intermarried or shall hereafter intermarry, shall thereby become legitimatized and shall become legitimate for all purposes, entitled to all the rights and privileges of a legitimate child; but an estate or an interest vested or trust created before the marriage of a parent of such child shall not be divested or affected by reason of such child being legitimatized.'

"Section 1993 of the Revised Statutes of the United States provides that all children heretofore 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 declared to be citizens of the United States; but the rights of citizenship shall not descend to children whose fathers have never resided in the United States,' and section 1992 declares all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, to be citizens of the United States.

66

Assuming that the father of Louis Rover, Léon Jean Rover, who was born in New York, had never renounced his American citizenship acquired by his birth, it is the opinion of the Department that Louis Rover, born in France in 1888 of a French mother, became a citizen of the United States by the subsequent marriage of his parents in 1891, in pursuance of section 18 of the domestic relations law of New York, cited at the beginning of this note."

Mr. Hay, Sec. of State to Mr. Lardy, Swiss chargé, Aug. 23, 1901, For.
Rel. 1901, 512.

In the case of a person born in China whose father was a citizen of the United States and whose mother was a Chinese woman, it was held that as the "father was an American citizen the nationality of his mother previous to marriage would make no difference in the son's nationality, provided he was legitimate, unless the father was a citizen of one of the States which prohibit marriage with Chinese, of which there is no allegation in the present instance.”

Mr. Bayard, Sec. of State, to Mr. Smithers, chargé at Peking, May 4, 1885, For. Rel. 1885, 171.

Accompanying this instruction there is an opinion of Dr. Francis Wharton, law officer of the Department of State, dated April 29, 1885. As the facts were reported to the Department of State it was not clear whether the son was born in wedlock. On this question a further investigation was directed to be made, but it was remarked by Dr. Wharton in his report that the rule of law undoubtedly is that, in doubtful cases, the presumption in favor of legitimacy is to control.” (For. Rel. 1885, 172.)