BY RIGHT OF BLOOD. JURE SANGUINIS [§ 347

Porto Rico or in the Philippine Islands to transient alien sojourners therein do not appear to have been regarded as acquiring American nationality at birth. Nor is it understood that a claim is made to the allegiance of children of foreign parentage born under like circumstances in the Virgin Islands.1

§ 347. By Right of Blood.

(2)

Jure Sanguinis

If the Act of Congress of February 2, 1855, concerning the acquisition of American citizenship by birth by reason of the citizenship of the father, indicates generally the policy of the United States,2 a like claim, similarly restricted, might be made in the case of children born in foreign States to American nationals, however lacking in American citizenship, and whether residing or temporarily sojourning in the place of birth. Thus the child absent from that island on April 11, 1899, "and have since returned and are permanently residing in that island, and are not citizens of any foreign country", were declared to be and were to be deemed to be citizens of the United States, provided that any person within this category might retain his existing political status by making a specified declaration under oath, of his decision to do so, within a fixed time. Special opportunity was provided also for a person absent from the island during the period when this proviso might be availed of, to take advantage of the privilege accorded by it. The same section of the Act provided further, "That any person who is born in Porto Rico of an alien parent and is permanently residing in that island may, if of full age, within six months after the taking effect of this Act, or if a minor, upon reaching his majority or within one year thereafter, make a sworn declaration of allegiance to the United States before the United States District Court for Porto Rico", setting forth specified facts required, "and from and after the making of such declaration shall be considered to be a citizen of the United States." Possibly the purpose of this Act was to confer citizenship (in a domestic sense) upon persons who were already deemed to be nationals of the United States.

According to the Act in relation to the Philippine Islands of Aug. 29, 1916, Chap. 416, § 2, 39 Stat. 546, U. S. Comp. Stat. 1918, § 3809, all inhabitants of the Philippine Islands who were Spanish subjects on April 11, 1899, "and then resided in said islands, and their children born subsequent thereto, shall be deemed and held to be citizens of the Philippine Islands", except such as might have elected to preserve their allegiance to the Crown of Spain in accordance with the provisions of the treaty of peace of 1898, and except such others as might have since become citizens of some other country. The same section embraced the proviso that the Philippine Legislature was authorized to provide for the acquisition of a Philippine citizenship "by those natives of the Philippine Islands who do not come within the foregoing provisions, the natives of the insular possessions of the United States, and such other persons residing in the Philippine Islands who are citizens of the United States, or who could become citizens of the United States under the laws of the United States if residing therein."

See Mr. Wilson, Acting Secy. of State, to the Secy. of War, Sept. 11, 1911, For. Rel. 1911, 71, in the Case of José Velasco.

1 No requirement in the matter appears to be laid down in Art. VI of the treaty of cession of Aug. 4, 1916, Am. J., XI, Supp., 53, 57.

2 Acquisition of American Citizenship by Right of Blood, § 345.

born in Germany, whose father was a citizen of the Philippine Islands, might be regarded as acquiring American nationality, with as much reason as if the father were a citizen of the United States. The United States has not as yet, however, enacted a law indicative of such a claim.

C

$348. The Attitude of International Tribunals.

The inquiry whether the jus soli or the jus sanguinis should be applied in determining nationality by birth has frequently confronted international courts of arbitration, where one State has demanded of another an indemnity in behalf of a person regarded by the latter as one of its own citizens. Neutral arbitrators have generally been agreed in requiring the sovereign which claimed an individual as a national to adhere to a position consistent with its own municipal laws or constitution. Thus a State of which the law, based upon the jus sanguinis, does not provide for the acquisition of nationality by birth of a child born within its territory to foreign parents domiciled abroad, is not permitted to deny the right of the State of the parents' nationality to claim (if it may do so consistently with its own laws) that the child at birth became one of its nationals.1 In case of a conflict of laws, the opinion seems to have prevailed that the law of the State in which the individual resided when the claim arose should govern the question of his allegiance in so far as it was derived from or dependent upon the fact of his nationality by birth. It is to be observed, however, that the cases involving

1 Case of Joseph O. Wilson, No. 121, Spanish-American Commission, under agreement of Feb. 11-12, 1871, Moore, Arbitrations, III, 2454; Case of Heirs of H. S. Shreck v. Mexico, No. 768, Mexican-American Commission, Convention of July 4, 1868, id., 2450; Claim of Maria Adelaide Morton, included in J. M. Ancira, attorney for numerous claimants v. Mexico, No. 374, before same Commission, id., 2453; Stevenson's Case, respecting certain children born in Trinidad, British-Venezuelan Commission, 1903, Ralston's Report, 438, 454.

In the Corvaïa Case, before the Italian-Venezuelan Commission, 1903, it was held by Ralston, umpire, that the original claimant, born a subject of the Two Sicilies, and who had lost his citizenship according to the code of that country by accepting diplomatic employment from Venezuela, and who had never regained such citizenship, had taken steps which made it inequitable for the Italian Government subsequently to claim him as a subject as against Venezuela. Id., 782, 808.

2 Cases of L. Lavigne and F. Bister, Spanish-American Commission, under agreement of Feb. 11-12, 1871, Moore, Arbitrations, III, 2454; also Plumley, umpire, in Mathison's case, British-Venezuelan Commission, 1903, Ralston's Report, 429, 433-438.

See award of May 3, 1912, in the Canevaro Case between Italy and Peru, before the Permanent Court at the Hague, respecting the claim of Raphael Canevaro.

ACQUISITION OF NATIONALITY BY REVOLUTION [§ 349

a conflict usually raise a question respecting the effect of certain acts or events alleged to have changed the nationality of the individual, rather than an issue concerning his nationality by birth.1

3

§ 349. Acquisition of Nationality by Revolution.

When a colony by process of revolution wins independence and becomes a State, the persons formerly nationals of the parent State who adhere to the new one and continue to reside within its territory may be regarded as becoming automatically the nationals of the latter. Thus, as a consequence of the American Revolution, persons formerly of British nationality, who adhered to the cause of the revolutionists and resided in the territory which they controlled, acquired American nationality when the United States came into being.2 A privilege of election was, however, accorded. British subjects withdrawing from the United States and so manifesting their adherence to the British Crown, were regarded as never acquiring American citizenship. The Supreme Court of the United States was of opinion that the change of nationality wrought by the Revolution was effected on or about July 4, 1776; and it tested generally, by reference to that date, the timeliness of acts indicative of an election to retain British nationality. In England the courts were of opinion

1 Cases of Narcisa de Hammer and Amelia de Brissot, American-Venezuelan Commission, convention of Dec. 5, 1885, Moore, Arbitrations, 2456, 2461; Plumley, umpire, in Stevenson's Case, British-Venezuelan Commission, 1903, Ralston's Report, 438, 442-452; Ralston, umpire, in Brignone Case, ItalianVenezuelan Commission, 1903, id., 710, 715; same umpire in Miliani case, before same Commission, id., 754, 759-760; same umpire in Poggioli case, before same Commission, id., 847, 866.

2 McIlvaine v. Coxe's Lessee, 4 Cranch, 209; Inglis v. Sailor's Snug Harbour, 3 Pet. 99; Mr. Gallatin to Mr. Lowrie, Feb. 19, 1824, 2 Gallatin's Writings, 287, Moore, Dig., III, 294.

All white persons, or persons of European descent, who were born in any of the colonies, or resided or had been adopted there, before 1776, and had adhered to the cause of independence up to July 4, 1776, were, by the Declaration, invested with the privileges of citizenship." Van Dyne, Naturalization,

272.

3 Thompson, J., in Inglis v. Sailor's Snug Harbour, 3 Pet. 99, 120-126. The learned Justice who delivered the opinion of the Court said in part: "Prima facie, and as a general rule, the character in which the American ante-nati are to be considered, will depend upon, and be determined by, the situation of the party, and the election made, at the date of the Declaration of Independence according to our rule; or the treaty of peace, according to the British rule. But this general rule must necessarily be controlled by special circumstances attending particular cases. And if the right of election be at all admitted, it must be determined, in most cases, by what took place during the struggle, and between the Declaration of Independence and the treaty of peace. To say that the election must have been before, or immediately at the declaration of independence, would render the right nugatory."

that the change of nationality took effect with the operation of the treaty of peace concluded September 3, 1783.1

Nationality which results from revolution is a natural consequence of the change of sovereignty brought about by the occupants of the territory of the new State. No affirmative acts are required of such individuals. Their duty of allegiance to the new sovereign arises from the circumstance that it, as the successor of the parent State, may reasonably claim as nationals all who previously owed allegiance to that State, at least while they remain residents of the territory of which the sovereignty has undergone a change. The situation does not resemble that where an individual attempts through his own acts to expatriate himself, and simultaneously to acquire through naturalization the benefits of the nationality of a foreign State.

4

Naturalization

a

§ 350. Definition. Regulation.

Naturalization is the process by which a State adopts a foreigner and stamps upon him the impress of its own nationality. The reasonableness of such action depends upon whether, in the particular case, circumstances have so combined as to warrant the claim that a relationship has been established between the naturalizing State and the individual such that there is due from him to it an obligation of allegiance superior to and inconsistent with any previously due to any other sovereign.

Whether naturalization serves also to confer rights of citizenship depends solely upon the will of the State whose nationality

1 Doe v. Acklam, 2 Barn. & Cresw. 779. With reference to the treaty of peace, the text of which is contained in Malloy's Treaties, I, 586, see, also, Story, J., in Shanks v. Dupont, 3 Pet. 242, 247, 248, Moore, Dig., III, 292–293. Also Art. II of the Jay Treaty of Nov. 19, 1794, Malloy's Treaties, I, 591, concerning the right of British settlers and traders within the precincts of military posts within the boundaries of the United States and occupied by British forces, to retain British nationality after the removal of said forces, and the opinion of Mr. Wirt, Atty.-Gen., as to the interpretation of the treaty. 5 Ops. Attys.-Gen., 716, Appendix, Moore, Dig., III, 293–294.

2 "Naturalization is the act of adopting a foreigner, and clothing him with the privileges of a native citizen." Fuller, C. J., in Boyd v. Thayer, 143 U. S. 135, 162.

See, also, Report on Citizenship of the United States, by J. B. Scott, D. J. Hill and G. Hunt, House Doc. No. 326, 59 Cong., 2 Sess.; Frederick Van Dyne, Law of Naturalization of the United States, Washington, 1907; Dana's Wheaton, Dana's Note No. 49.

VOLUNTARY INDIVIDUAL ACTION

[§ 351 is acquired.1 That State is free to determine according to its discretion what classes or races of aliens it will accept as nationals and the conditions on which they may become such. It may be noted that until the beginning of the twentieth century the statutory law of the United States offered abundant opportunity for fraud on the part of aliens seeking to acquire American citizenship.2

b

§ 351. Voluntary Individual Action.

The United States has always maintained that a transfer of allegiance, save where it is brought about collectively through the operation of a change of sovereignty over territory, must be a distinctively voluntary act, and that loss of nationality should not be imposed as a penalty, nor a new national status forced as a favor by one government upon a citizen of another. A transfer of allegiance is deemed to possess an involuntary aspect when, without the knowledge or consent of the individual, it is made the legal consequence of his purchase of land, or of his

1 This is true when naturalization takes place in the United States by virtue of Sec. 1 of the Fourteenth Amendment to the Constitution, which provides 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."

2 President Grant, Annual Message, Dec. 5, 1876, For. Rel. 1876, ix, Moore, Dig., III, 298; President Arthur, Annual Message, Dec. 1, 1884, For. Rel. 1884, x, Moore, Dig., III, 299; President Cleveland, Annual Message, Dec. 3, 1888, For. Rel. 1888, I, xvii-xviii, Moore, Dig., III, 300; President Roosevelt, Annual Message, Dec. 6, 1904, For. Rel. 1904, xxxii-xxxiv; opinion of Mr. Justice Brandeis, in United States v. Ness, 245 U. S. 319, 324.

But see § 15 of the Act of Congress of June 15, 1906, respecting fraudulent naturalization, and the Diplomatic Instructions and Consular Regulations based thereon, April 19, 1907, For. Rel. 1907, I, 8-9.

3 The language in the text (save for the proviso) is substantially that of Mr. Bayard, Secy. of State, to Mr. Manning, Minister to Mexico, Nov. 20, 1886, For. Rel. 1886, 723, Moore, Dig., III, 305-306. See, also, Same to Same, April 27, 1887, For. Rel. 1887, 717, Moore, Dig., III, 307; Mr. Fish, Secy. of State, to Mr. Russell, Minister to Venezuela, Feb. 22, 1875, MS. Inst. Venezuela, II, 283, Moore, Dig., III, 303.

It may be observed that through the operation of the treaty between the United States and Spain of Dec. 10, 1898, the natives of the Philippine Islands and Porto Rico were collectively naturalized, and left without means of retaining their Spanish nationality while they remained in those islands.

See cases relative to the ownership of land in Mexico, before MexicanAmerican Commission, Convention of July 4, 1868, Moore, Arbitrations, 2468-2483, especially Case of Fayette Anderson and Wm. Thompson, No. 333, id., 2479, and 2481. Mr. Bayard, Secy. of State, in a communication, to Mr. Manning, Minister to Mexico, April 27, 1887, expressed 'dissent from the position that foreigners who have purchased land or had children born to them in Mexico may, from time to time, by a municipal statute, be deprived of their nationality unless they take some affirmative step to preserve it." For. Rel. 1887, 717, Moore, Dig., III, 307.

Compare Mr. Olney, Secy. of State, to Mr. Ransom, Minister to Mexico,