3 same doctrine was elaborately adopted in Lynch v. Clark,1 and in the case of Look Sin Sing. In Minor v. Happersett, the Supreme Court of the United States state the question, but do not decide it, nor has the question ever been decided by that court. The remarks upon this subject made in the Slaughter House Cases and in Elk v. Wilkins, were not necessary to the decisions, nor, when rightly understood, do they contravene the doctrine adopted by the government itself. Even if the Supreme Court should in a case within this country, decide adversely upon the subject, it is by no means certain that the executive department would change its international position. Such a decision would be the law of the case in which it arose, and as such would be respected and enforced, but the judiciary cannot invade the department of the executive, and the administration of international law in our dealings with foreign nations, is essentially a political matter, wherein the court cannot control the executive. Independent political action by the latter, upon its own construction of political law, at variance with the law as announced by the Supreme Court, has repeatedly occurred in this country. Our international law upon this subject of citizenship should not be changed until Congress deals with it and makes new law. Any other course would be undignified and humiliating in our relations with other nations. 6 Again, the doctrine of our government is clearly not in violation of any generally recognized principle of international law. In Steinkauler's case it is said: "There is no uniform rule of international law upon the subject." But there is the great authority of Judge Story for the proposition "that there are certain principles which have been generally recognized by the law of nations, as of unquestionable authority," - the first of which is, "Persons who are born in a country are generally deemed to be citizens and subjects of that country.' 8 To the same effect is 1 1 Sandford Ch. 584-689. 2 10 Sawyer, 358. 3 21 Wallace, 162. 4 16 Wallace, 73. 5 112 U. S. 102. 6 Wharton's Commentaries upon American Law, Sec. 389 and note; 2 15 Opinions of the Attorney General, p. 15. See also Wheaton's International Law, Sec. 12. 8 Conflict of Laws, 48. 2 3 the language of Judge Curtis in the Dred Scott case.1 So generally was this doctrine formerly maintained that an eminent French authority declared it to be "the rule of Europe." In the third edition of Hall upon International Law, section 68, (1892) it is said: "Probably until the establishment of the Code Napoleon by France no nation regarded the children of foreigners born upon its territory as aliens." The Code Napoleon by its first draft, and as temporarily adopted, provided that “tout individu né en France est Francais" but upon its being urged that a child might be born during the passage of its parents through France, and that in such case neither feudality, nor intention, nor residence would attach him to France, the new phraseology was adopted.1 Germany, Austria, Sweden and Norway adopt the doctrine that national character follows parentage alone. All these countries are monarchical and have great numbers of their subjects scattered into other countries of freer institutions, over whom, and over whose children they desire to retain a grasp for compulsory military service in case of a return or casual visit to the parent country. No such considerations rest upon us, especially in view of our doctrine of the absolute right of voluntary expatriation. Russia makes nationality, in principle, depend upon descent, but reserves the right to claim Russian nationality for every person born and educated in Russian territory. In Italy, all persons born of aliens on Italian soil may elect to be Italian citizens, and are such as of course if the father has been domiciled in the kingdom for ten years. In England, Portugal, Denmark and Holland and in the larger number of South American States, generally speaking, children born of foreigners are regarded as citizens of the countries in which they are born.5 It is therefore clear that our government, in its action upon this question, has violated no generally received doctrine of international law, and may consistently retain the principle that has been approved by English-speaking people the world over. The position of the United States upon the subject is generally stated by writers upon international law to be the same as that of England.1 But the American doctrine, as it may fairly be termed in view of the foregoing authorities, is better suited to our national needs than the other. Leaving out of consideration merely temporary sojourners in, or travelers through our country, an enormous portion of our population is of alien birth, but of people who have come to make their homes with us, who have become in intent an integral and permanent portion of our nation, and who have practically expatriated themselves from their former allegiances. We are a nation to which immigration comes, not one from which emigration flows. The children of such inhabitants born in the United States, are in most cases as thoroughly identified with us as those born of our own citizens. They regard themselves as citizens and have no thought that they are aliens, or that they must be naturalized in order to claim the protection of our country, in distinction from that of another to which they are alien by birth, intention and domicile. Many foreigners domiciled in our country and married to our country-women, die without having taken the initial steps for naturalization: some because death comes unexpectedly; some because their new homes were upon the frontier where facilities were not at hand, some (like many Scotch Presbyterians living in my own "Caledonia" County in Vermont and widely in other sections), because the constitution recognized slavery; and many because sickness, poverty and the struggle with nature in a new country, diverted the attention away from political duties or rights. Are we prepared to say that all children born in our country of such marriages are aliens, and entitled as such to conduct their neighborhood litigation in the Federal courts — are ineligible to hold office until naturalized, forever disqualified from the highest office, subject to compulsory military service in 1 Cobbett's Leading Cases on International Law; Kostyea Case, p. 54 and note; Hall on International Law, p. 223. a foreign land if they chance to visit it, not subject to such service in our country, incapable in some States of serving as jurors or of inheriting real estate, and not entitled to passports as citizens? Such a doctrine, carried to its logical conclusion, would work great mischief and be justly odious and intolerable to our people. Neither the Fourteenth Amendment to the constitution nor the definition of citizenship in the Civil Rights Bill,1 militate against this position. In the first place, the theory that the place of birth fixes nationality has been uniformly held by our government ever since the adoption of that amendment and the passage of that bill, as above shown. In the second place, the amendment and bill were not brought into existence for the purpose of limiting, restricting, or defeating the rights and privileges of people born in this country, but for the purpose of enlarging and securing such rights and privileges. Their primary object was forever to end the inconceivable injustice of the Dred Scott decision and to elevate the negro to the rank of citizenship from which that decision had forever debarred him and all his posterity. Any construction of that great amendment which should convert it into an instrument for depriving of the rights of citizenship those who had uniformly before been considered entitled to it would be a perversion of its whole spirit and purpose. But, thirdly, the amendment and bill are not in conflict with the doctrine here advocated. The amendment provides that “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States; and the bill, among other things, defines citizenship as embracing "all persons born in the United States and not subject to any foreign power, excluding Indians not taxed." Conceding that the jurisdiction" referred to in the amendment means political national jurisdiction and not merely the jurisdiction of our laws, no progress is made towards the conclusion that one born in our country is subject to the national or political" jurisdiction of another country, or is "subject to any foreign power." The 66 1 Revised Statutes, Sec. 19, 92. very question under discussion is, does not the very fact of birth in our country render one "subject to the jurisdiction thereof,” and "not subject to any foreign power?" That question is not answered by asserting the negative, which would be mere petitio principiis. But it is answered in the affirmative if the conclusions hereinbefore stated are correct. Upon this subject two opposing principles contend, each of which is undisputed within certain limits. By common consent, one born of a citizen in his own country is a citizen of that country. But if he is born in a foreign land and takes necessarily the nationality of his father, then his children born in that same foreign land would likewise take the nationality of their father and so on forever. But no theory of international law goes to this extent. All law recognizes the fact that there comes a time when the nationality of the ancestor has been extinguished, and a new one has taken its place by the mere fact of a succession of births in another country without naturalization.1 When does the new principle of place of birth begin to extinguish the nationality? When does it complete that destruction and itself assume full sway and clothe the descendant with the new citizenship? It is no answer to say that the child is born with the stamp of his father's nationality upon him. He is likewise born with the stamp, in case of domicile in the new country, of his father's actual domicile and intention never to renew or recognize his former allegiance and to adhere to the new one.2 Which stamp is the more indelible and controlling? Ultimately the latter controls in all cases. According to our national theories, as expounded in our foreign relations and as suited to our conditions, the new stamp is controlling from the first birth in the new country, not from the second or later generations. But the question of domicile is important in this connection. One born of parents temporarily in our country is not born with the stamp of domicile and intention to reside here. Those two elements of national jurisdiction are wanting. Citizens of 1 Nelson on Private International Law, p. 46; Westlake on Private International Law, p. 283. 2 Westlake on Private International Law, p. 299. |