Page images
PDF
EPUB
[merged small][merged small][ocr errors][ocr errors][merged small]

one country domiciled but not naturalized in another, " are de facto, though not de jure, citizens of the country of their domicile."i Their children should be deemed de jure as well as de facto citizens, especially when the parent has acquired a domicile, within the large sense of Lord Kingsdon's rule, - that the parent intended to put off one nationality and put on another.” Nearly all governments recognize the weakening effect upon original allegiance of personal domicile in foreign lands, and frequently refuse national protection to their subjects or citizens so situated. “ It may be proper to treat one so situated as an alien for the purposes of public international law.”3 Our own government has repeatedly ruled, as stated by Secretary Fish, that “When a citizen of the United States goes abroad without any intention to return he forfeits with the abandonment of his country, all rights to the protection of its government.” 4

President Grant, in his fifth annual message, 1873, said: “We have agreed that residence in a foreign land without intent to return, shall of itself work expatriation.” While our law declares children born of our citizens in foreign lands, to be citizens of the United States, yet it is clear that if the parents are domiciled in foreign lands the citizenship is of a meager and barren character so long as the foreign domicile is continued, and entitles its nominal beneficiaries to few or none of the rights and benefits of full citizenship.

On the other hand, where an alien is actually domiciled in our country, fixed for life as an inhabitant, his original nationality is so far weakened that our institutions ought not to consent that its inanimate shadow shall rest upon his offspring and deprive them of the inherent rights which are theirs by birth. Upon the same analogy persons residing in Eastern and barbarous lands for purposes of trade are not regarded as thereby abandoning their nationality. They are not in the international sense

[blocks in formation]

1 Phillmore Int. Law, Sec.119, Vol. 1.

Moorhouse v. Lord, 9 Jur. (N. 8.) 677.

3 Westlake on Private International Law, Sec. 292; Hall International Law, p. 279.

4 Wharton International Law Digest, Secs. 176, 183, 185, 190, 198; Boyd's Wheaton's International Law, Sec. 151, L.; 13 Opinions of AttorneysGeneral, 91.

Oternational

domiciled there. “From the oldest times, an immiscible character has been kept up. Foreigners are not admitted into the general mass of the society of the nation. They continue strangers and sojourners as all their fathers were.”'i By the same reasoning, the Chinese are not domiciled in the United States. They do not expect permanently to remain in this country. They all look forward to a return, sooner or later, to China. Their original allegiance has never been weakened. Hence they may consistently be considered to stand upon an entirely different basis as to their children born here, from other nationalities." 3

Yet recently a lieutenant in the United States navy married a Chinese lady of wealth and social position, at Honolulu. This presents no difficulties. But reverse the case and suppose a Chinese to be actually domiciled in the United States and there to marry an American wife and sons to be born of the marriage. Upon the theory of nationality by descent alone, those sons are aliens and, by our law, being Chinese, cannot be naturalized. If they marry American women their children, though three-fourths American by blood, and wholly so by domicile, intention and place of birth, are with all their posterity forever debarred from the rights of citizenship. No one could carry the doctrine to this point, its logical conclusion. At some stage the Fourteenth Amendment, not only permits them to become citizens, but declares them to be so, in such sense that no act of legislature or Congress can deprive them of that right. When does that time arrive? Upon principle and authority, it should arrive when national domicile and intent on the part of the father concur with the place of birth of the child to fix its status. That the facts may in some cases be difficult of determination, is unimportant. That is often true in any question of domicile.

But there is a medium between the two theories, which has much to commend itself and which is now the law of great Britain by virtue of the Act of 1870,3 which provides that " any person who, by reason of his having been born within the domin

1 Lord Stowell in The Indian Chief, 3 Robins Adm. R. 18; Westlake on Private International Law, 3d ed., p.

2 Wharton's Conflict of Laws, Sec. 12.

3 33 Vict. c. 14.

[merged small][merged small][merged small][merged small][merged small][ocr errors][merged small][merged small][ocr errors][merged small][merged small][merged small]

ions of Her Majesty, is a natural born subject, but who also, at the time of his birth, became, under the law of any foreign State, a subject of such State, is still such subject.” Also“ any person who is born out of Her Majesty's dominions of a father being a British subject, may, if of full age, and not a lunatic, idiot, or married woman, make a declaration of alienage and from and after the making of such declaration shall cease to be a British subject.” This provision was part of an enactment covering the whole subject of nationality and naturalization, formulated after most careful study of the whole subject. It will doubtless long be the international law upon this subject for the whole of the vast British Empire. It retains the old doctrine that one born of alien parents within British territory or of British parentage in foreign lands, is a British subject, but qualifies it by allowing the child to elect alienage, if it so chooses, upon arriving at the age of majority. The same principle seems to have been adopted by Secretary Bayard in case of children born abroad to citizens of the United States.' He wrote to our Minister to Germany: “Under the rules of international law, the son, having been born in Alsace-Lorraine of an American father, had the option of remaining there until his majority and electing to take the allegiance of his birth or of claiming the allegiance of his father.” The same doctrine was declared by the Attorney General of the United States — Steinkauler's case,” where he says: “ This seems to be right reason,' and I think it is law." Mr. Wharton declares this to be a general principle of international law. By the French statute of February 7th, 1851, children born in France of aliens are to be deemed French unless, within one year after majority they make claim to their parents' nationality in a formal manner. The privilege of election is also recognized to a greater or less extent by the laws of Spain, Belgium, Greece, Bolivia, Italy and Portugal. Probably further legislation would be necessary to make it clear that such

en nations! cur with the

e facts me!

nimportant

[merged small][merged small][merged small][merged small][ocr errors]

I Sec. Bayard to Mr. Pendleton, 27
April, 1886 – MS. Germany.

? Opinions of Attorneys-General,
Vol. 15, p. 18.

8 Wharton on Conflict of Laws, Sec. 10; citing Ludlow v. Ludlow, 26 N. Y. 356.

4 Hall on International Law, pp. 222, 3.

is the law of the United States. But if this rule in its simplest form were everywhere adopted the two opposing principles would have met upon a rational common ground, and there would then be, in the true sense, an international law upon this subject.

HENRY C. IDE. APIA, SAMOA.

[merged small][ocr errors][ocr errors][merged small][ocr errors]

simplest rinciples

re would

subject. C. IDE.

NOTES,

ERRATUM. - In the article of Prof. Wigmore in our last number, the reader is requested to note the following printer's errors: page 32, line 7, from bottom, for “ leads” read “ Levels,” and on page 43, note 3, line 6, for “7th” read " 17th."

THE LIBRARIAN OF THE CHICACO LAW INSTITUTE. Hon. Julius Rosenthal has been re-elected librarian of the Chicago Law Institute, after having served in that office for nineteen years. He is a lawyer of great learning, by taste and education a bibliophile, and eminently qualified for such an office,

JEREMY BENTHAM ON MODERATION.— The West Virginia Bar quotes Jeremy Bentham as saying: “ The true boundary of man is moderation. When once we pass that pale, our guardian angel quits his charge of us." If this is true, the guardian angel of Jeremy Bentham never succeeded in getting charge of him. It is nearly the truth to say that the above sentiment is the only moderate one that he ever expressed.

RAMBLES THROUGH JUDICIAL REPORTS.— Our learned friend Adolph Moses, Esq., editor of the National Corporation Reporter, has started a department in his paper under the above caption. Assuming that Brother Moses may have the skill of a fox in following devious paths and finding his way through labyrinthine places, is he not aware of the danger of getting lost in his rambles through the Illinois Reports ? Will he not find himself in the predicament of Milton's fallen angels, who after the Stygian Council bad dissolved, retired to a hill to talk theology,

“And found no end in wandering mazes lost?”

DECLINE OF LEGAL BUSINESS IN ENGLAND.— Our English cotemporary, the Law Journal, bewails the decline of legal business which has

« PreviousContinue »