the earliest times, both under the laws of England and in decisions of American courts, had been recognized to be exceptions to the fundamental rule of citizenship by birth within the national jurisdiction.)

The Fourteenth Amendment to the Constitution,1 adopted in 1868, incorporated no new rule or principle into American law. Neither did the Civil Rights Act, passed in 1866 as a Reconstruction measure, although it was the first statutory definition in the United States of citizenship by birth. That Act says:

All persons born in the United States, and not subject to any foreign power, excluding Indians not taxed, are citizens of the United States and of the States where they reside.

COMMON-LAW DEFINITION TAKEN FOR GRANTED

The English Common Law, then, is the original source of our definition. That definition, taken over with the formation of the American Republic out of the English colonies, was so familiar, so much a part of the nature of things political, that nobody thought it necessary to formulate it-or a new one.

By the Common Law of England, every person born within the dominions of the Crown, no matter whether of English or of foreign parents-and in the latter case whether the parents were settled or merely temporarily sojourning in the country, was an English subject; save only children of foreign

1 Fourteenth Amendment-1. 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. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.

ambassadors... or a child born in hostile occupation of any part of the territories of England.1

When the Constitution of the United States was made, a "citizenship of the United States" was recognized but nowhere defined, and it was nearly a century before it found specific statutory expression in the Civil Rights Act and the Fourteenth Amendment. Meanwhile, not only the courts, but the Executive, invariably recognized the validity of the Common Law Rule, and the Wong Kim Ark decision of 1897 merely restated it once for all.2

CONCERNING AMERICANS BORN ABROAD

There are certain elaborations and modifications of the two great principles mentioned above, serving both to confirm and circumscribe them. Children born abroad of American citizens in the foreign service of the United States government are citizens of the United States, and like citizenship comes by birth to children "born out of the limits and jurisdiction, whose fathers were or may be at the time of their birth citizens thereof." But the father must have been a citizen at the time of the birth of the child, and must have resided actually in the United States; that is, it will not do for him merely to have acquired citizenship abroad by the fact of the citizenship of his father without ever having resided in this country.

If the father loses his citizenship after the birth

1 Cockburn, Nationality, p. 7.

2 See Murray vs. The Charming Betsey, 2 Cranch, 64; Inglis vs. Sailors' Snug Harbor, 3 Pet, 99; M'Creery vs. Somerville, 9 Wheat, 354; see also Instruction of Marcy, Secretary of State, to Mason (1854), quoted in Moor's Digest of International Law, iii, p. 276. See House Document 326, Fifty

Revised Statutes, sec. 1993. ninth Congress, Second Session.

of the child, it has been held that such child upon attaining his majority may revive his right to citizenship by establishing residence here. And by virtue of legislation enacted in 1907, these foreign-born children of American parentage are required, upon reaching the age of eighteen, to register their intention to become residents, and to remain citizens, of the United States, and upon attaining majority to take the Oath of Allegiance to the United States.

The Department of State has been very liberal in interpreting this provision, allowing the declaration of intention to be made at any time after the person concerned has reached the age of eighteen, and before he has taken the oath, which may be at any reasonable time after his majority. The main question raised is that of good faith. Arises here the principle of "election of nationality"; many countries accord to a person thus in danger of what might be called “dual nationality" the right to choose. This is the case in France, Spain, Belgium, Greece, Italy, Portugal, Mexico, Chile, and Costa Rica. In Portugal, Italy, and France, failure to exercise this choice operates as a choice of citizenship there; in Spain, on the other hand, silence is construed as a choice of the foreign nationality. This is the purport of the American practice.1

CHILDREN BORN AT SEA

It is commonly believed that children of foreign parents born on the high seas under the American flag are as a matter of law "born in the United States and subject to the jurisdiction thereof," but this is not clearly the case. As Borchard puts it, the child "is

1 See discussion of this question by Borchard-The Diplomatic Protection of Citizens Abroad, p. 583 et seq., and footnotes.

probably an American citizen under our law and may also be a foreign subject jure sanguinis. Hence he would, upon attaining majority, have a right of election.

QUESTION OF DUAL NATIONALITY

Can a person gain a new citizenship without losing the old? The aspirant for American citizenship is required in both his declaration of intention and his final petition for naturalization to abjure in most specific fashion not merely all other allegiances, but most particularly that from which he has come. But the sovereignty thus repudiated is not always willing to be abjured, and international diplomacy has been in the past much occupied with the tangles growing out of the question of "dual nationality." For one not uncommon example, the child of alien parents born in the United States and thereby under our law a citizen of this country, may be taken in childhood back to his father's native land, and upon reaching military age may be summoned to military service. The United States has not been prone to defend such persons when their actual residence in the old country was clear, but it has been maintained that upon the attainment of his majority such a person has the right to elect and re-establish his American citizenship.

The most common difficulties arise practically, however, from the fact that under the terms of his declaration to become a citizen of the United States, the alien repudiates his allegiance to his fatherland and its sovereignty, but does not gain, and cannot gain, for at least two years in any circumstances, a new citizenship. He has in most specific fashion flouted the government he had, but the government he desires to have will not protect him. For his practical uses, it is a

question whether he has now two nationalities or none! Moreover, there have been countries and times in which the right to change allegiance was altogether denied.

In their attitude on the subject of voluntary expatriation the nations differ widely, and are divisible in this matter under three heads: those which deny the right altogether, those which permit it under certain conditions, and those which place no bar in the way.

COUNTRIES DENYING THE RIGHT OF EXPATRIATION

Under the old regime, the Russian imperial government laid a heavy penalty upon the Russian subject who returned to Russia after having been naturalized abroad without the imperial consent.1

Turkey, under a law proclaimed in 1869, prohibited the naturalization of its subjects abroad without the permission of the Turkish government. The penalty provided was imprisonment or expulsion. In practice, however, expulsion has been the only penalty inflicted, and the United States has contented itself with an occasional protest.

The practice of Greece is not entirely clear-cut or consistent. A law enacted in 1914 requires the permission of the government before naturalization abroad; in practice this is not given to those who have not discharged their legal obligations as to military service. The practical effect of this attitude on the part of Greece has been shown chiefly in the failure

1 See Department of State, Circular notice, January 9, 1914.

2 In former times, even the American-born child of parents of Turkish birth has gone to that country at his peril. This was under the old conditions; what the postwar reconstruction will effect in this regard remains to be seen.

3 3 See Hall, International Law, 7th ed.,

p. 247.