In Chancery-Lynch v. Clarke and Lynch.

7. Before parting with the subject, I will The difficulty of answering these inexamine further the grounds on which the quiries satisfactorily, strikingly exhibits the citizenship of Julia Lynch was denied. impracticability of the principle sought to

It was assumed to be an indisputable pro-be applied to this case. position, that by the international or public I do not find that the rule derived from law, she was an alien; for that by the pub- the public law, is so clearly in favor of the lic law, the child follows the political con- complainant, as was contended by him.dition of the parent. It is evident that this Mr. Justice Story, who is familiar with the rule, without very important qualifications, Continental writers upon public law, says might lead to the perpetuation of a race of" that certain principles (relative to nationaliens; for if no one of the successive fath- al domicil) have been generally recognized ers effected his naturalization during the by tribunals administering the public law minority of the next in succession, genera- or the law of nations, as of unquestionable tion after generation would continue in a authority. First, Persons who are born in state of alienage. Accordingly, the diffi- a country, are generally deemed to be citiculty is sought to be obviated, by giving to zens and subjects of that country. A reathe child born of alien parents, the election, sonable qualification of the rule would seem on arriving at maturity, to become a citizen, to be, that it should not apply to the chileither of the state where he was born, or dren of parents, who were in itinere in the of the state of which his father was a mem-country, or who were abiding there for tember. In effect, this brings us back to the theory of the formation of states and governments, by voluntary compact of their in habitants; and yields to every man, the unqualified right of throwing off allegiance by birth, whenever he becomes of age, and attaching himself to any community which Thus, the learned commentator sets out pleases him. And if he may do it when he with the common law principle; and while attains his full age, why may he not exer- he suggests certain modifications of the gen cise the same natural right, every succes-eral rule, which might be deemed reasonasive year of his life? And with these notions of allegiance fully established, a state, with a well appointed army of its citizens in the field to-day, might to-morrow, find itself without citizens, and its troops in the full fruition of a new allegiance, in the ranks of its enemy.

Waiving these considerations, what, in a case like that of Julia Lynch, is to be her political quality and condition, until the period of her right to elect shall have arrived? In her case, (and it will often happen in similar cases,) important events occurred in the meantime, and rights accrued, which must be determined by the state of things then existing. Is it not unwise in the state, and unjust to the infant to withhold the qual. ity of the citizen, or keep it in abeyance, until the years of discretion are attained? Even with the rights of election established, there must be some fixed rule determining the allegiance, until the period for making the election arrives. Shall that rule be founded upon the place of birth, or the place of the parents birth; upon their allegiance at the time of the birth of the propositus, or upon their domicil at that time, or during the subsequent period?

porary purposes, as for health, or curiosity, or occasional business. It would be difficult, however, to assert, that in the present state of public law, such a qualification is universally established." (Story's Conflict of Laws, 47, § 48.)

ble, but which are unknown to the common law; he does not consider them as fully established, even in the public law.

The rule contended for, is one confined to countries which derived their jurisprudence from the civil law, and is more properly a rule of the civil law, than one of the public law, or law of nations. Thus in the Digest, "Filius civitatem, ex qua pater ejus naturalem originem ducit; non domicilium sequitur. (Digest: Lib. 10, Tit. 1., Ad Municipalem; et de incolis, 1. 6, § 1, and ibid 17, § 11.) And it recognized the right of the son, notwithstanding, to establish his own domicil. (See note 25 to § 11, last cited, and ibid, 1, 27.)

So in France, following the rule of the civil law, they hold that every child born of a Frenchman, in a foreign country, is French. Their code also provides for expatriation, and for an election to become Frenchmen, in behalf of those born in France of a foreigner. (Code Napoleon B. 1., tit. 1, ch. 1, § 19; also § 9, and ch. 2.) And such was the law of France three centuries ago. (Jenk. Cent. Ca. 5 Cent. Case. 91.)

In Chancery-Lynch v. Clarke and Lynch.

In Spain, however, where the Visigoths ther takes up his abode in the foreign counnominally excluded the civil law, and really try. adopted its principles almost in mass, the

Pufendorf, who is also cited in support of law concedes the rights of a natural born the civil law rule, says that all those who subject, to all persons born in the kingdom, are born of a citizen, are deemed by that and to children born elsewhere whose fa- circumstance alone, to submit themselves ther was a native of Spain. (De Partidas, to the sovereign power on which their pa 4, Tit. 24, Law 2; Novisima Recopilacion de las Leyes de Espana, Lib. 1, Tit 14, L. 7. Institutes of the Civil Laws of Spain, by Doctors D. Ignatius Jordan de Asso Y Del Rio, and D. Miguel de Manuel Y. Rodriques, Book 1, Tit. 5, Cap. 1, and §1.*

The writers on public law, are by no means agreed upon the question before me; although they were strongly imbued, by their studies and habits, with the spirit of

the civil law.

rents depend. He however, does not speak of children born of citizens in foreign countries; and from, the context, as well as the residue of the section referred to, it is prob. able that his observations were intended to be limited to the children born in the state, who were the descendants of those who in theory first formed the civil government. (2 Pufendorf by Barbeyrac, 303, Liv. 7, ch. 2, § 20.)

Schmier, another writer on public law, is Vattel says, the natives, or indigenes, are more explicit. He says: "Continuatur those born in the country, of parents who subjectio, nativitate; natus enim ex subdito are citizens. That in order to be of the vel cive, fit subditus ac civis illius civitatis, country, it is necessary that a person be cujus pater est membrum et pars." And he born of a father who is a citizen, for if he is cites to the same effect, Hertius, De Modo born there of a stranger, it will be only the Constit. et Civit., vol. 1, § 1, subd. 7.— place of his birth, and not his country. (Vat-(Schmier Jurisprud. Publica, Lib. 5, cap. 1, tel's Law of Nations, B. 1, ch, 16, § 212.) § 3, 42. And see Boehmer, Introductio in He further says, in reference to the inquiry Jus. Digestorum, Germaniæ, Lib 3, ch. 1, whether children born of citizens in a for- § 15. 2 Rutherforth's Institutes of Natural eign country, are citizens, that the laws Law, 41, B. 2, ch. 2, § 6.) have decided the question in several coun- On the other hand, Domat says: "Strantries, and it is necessary to follow their reggers who are likewise called aliens, are ulations. That in England, being born in those who, being born in another country, the country, naturalizes the children of a and subjects of another kingdom than that foreigner. That by the law of nature alone, of which they are inhabitants, have not been children follow the condition of their fathers naturalized." And again: "The children and enter into all their rights. But he puts of strangers born in a kingdom in which forth that opinion, on the supposition, that their father was an alien, having their orithe father has not entirely quitted his coun- gin in that kingdom, are subjects thereof; try in order to settle elsewhere. If he has and they have in it the rights of naturalizafixed his abode in a foreign country, he is tion, as if their father had been naturalized become a member of another society, at a subject of it, and they succeed to him, alleast as a perpetual inhabitant, and his chil- though he dies an alien." (2 Domat's Civil dren are so too. (Ibid § 214, 215. And Law, by Dr. Strahan, 376. Title, Public see § 216.) Thus the rule of Vattel, is con- Law, B. 1, tit. 6, § 4, subd. 2 & 5. trolled by the intention with which the fa

Since writing this opinion, I have been informed by a friend who examined the subject recently while in Europe, (the Hon. John A. Dix :) that these provisions relative to citizenship, are embraced in the new Constitution of Spain. The Constitution provides further, that foreigners who establish their permanent residence in Spain, shall be entitled to the rights of natural born subjects.

He also informs me, that by the last Constitution adopted in Portugal, (that of 1837,) children born in that kingdom of alien parents are native born subjects, and the same rights are conferred on children born abroad, whose father was a native of Portugal.

Burlamaqui, who places the rights of subjection and protection in the case of children, upon mutual consent, says, that on their attaining to the years of discretion, their remaining in their native country is deemed a submission to its government, and they are then members of the state. (2 Burl, 31, Principles of Public Law, Part 1, ch. 5 § 10, 11, 13.) He does not state the rule as to those born of foreign parents, and it is evident that he would leave them to the same election which he gives to those born of citizens.

In Chancery-Lynch v. Clarke and Lynch.

ment be an exception, not a single work on American law, that asserts the existence of either of those qualifications.

In 6 Hall's Amer. Law Journal, 30, 37, is to be found: Discussions on the question whether inhabitants of the United States, born there before the Independence, are on In 4 Dane's Abridgement, 701, ch. 131; coming to this kingdom, (England,) to be art. 2, § 8, he says: "And now, if an Amerconsidered as natural born subjects. By a ican citizen goes abroad and marries an Barrister. December 9, 1810. The wri- alien wife, and have a child by her in a forter was John Reeves, Esq., the author of eign country, that child is not alien, but the History of the English Law. His con- may inherit his estate in the United States. clusion on that question, was not in accord. But if an Ameriean woman, a citizen, go ance with the subsequent decisions, either abroad and marry an alien husband, and there or here. I cite the work because of have a child by him so born, that child is an his argument on the objection to the incon-alien, and cannot inherit her estate in the sistency of Americans being citizens of the United States. And upon the same princiUnited States while here, and being Brit-ple, if an English subject comes into the ish born subjects when there. He says, United States, and marries an American "this is not a novelty, nor is it peculiar to wife, and has a child by her born here, it Americans. It may happen to any British cannot inherit her estate here, because this subject, and it is allowable in our law, which child follows the allegiance of its father, and recognizes this double character of a person, may inherit his estate in England." Manibeing as was before shown, ad fidem utrus- festly a non sequitur, because in the case que regis." And he asks, "Do not British first put, the child, if born in England of an subjects become citizens of the United American father, unquestionably owes alleStates? Some persons are born to such giance in England, is a subject of that coundouble character; children and grand-chil- try, and may inherit there. Yet he is, as dren, born of British parents in foreign the author says, a citizen of the United countries, are British born subjects, yet these, no doubt, by the laws of the respective foreign countries, are also deemed natural born subjects there."

States also. And by the same rule, the child born here of the English father, is a citizen here, and may inherit here as well as in England. In short, both are cases of that double allegiance, which is effected by the rule of the common law, and which Mr. Reeves says is not a novelty, nor peculiar to that law.

With these remarks, I dismiss the argument founded on the rule of the public law, its fitness and adaption to the spirit of our institutions.

These references show that the rule which the complainant derives from the writers on public, law is not even in theory, clearly defined or uniformly held. That the most approved authorities, do not deviate from the rule of the common law, any farther than Judge Story has suggested that it is reasonable to deviate; and to establish such a departure, would involve the whole The provisions of the naturalization laws subject, as it respects the children of foreign-enacted by Congress, are urged as decisive, ers, in the obscurity ever attendant upon that children born here, of alien parents evidence of intention, the animus manendi, were not citizens. The act of 1802, § 4, upon a change of residence; an obscurity declares that the children of persons duly the greater in these cases, because the naturalized under any of the laws of the question generally arises after the lapse of United States, or who, previous to the passmany years. The advantages to result ing of any law on that subject by the gov from a resort to such an uncertain and fluc-ernment of the United States, may have tuating rule, are more ideal than substantial; and are completely over borne by its inconveniences, when contrasted with the simple and plain rule of the common law. The qualifications mentioned by Judge Story, and which are not universally established in the public law, are certainly unknown to the common law in England, and as estab. lished in the United States. There is no authority, and unless Mr. Dane's Abridge.

become citizens of any one of the states, under the laws thereof, being under the age of twenty-one years at the time of their parents being so naturalized or admitted to the rights of citizenship, shall, if dwelling in the United States, be considered as citi zens of the United States. (2 Story's Laws of U. S., 852, 3.) A similar provision was enacted in the acts of 1790 and 1795. And the second section of the act of 1804, pro

In Chancery-Lynch v. Clarke and Lynch.

And al

vided that when any alien who had declared | ture regulation and control of the subject of his intention &c., should die before he was citizenship within her territory, at least in actually naturalized, his widow and children its primary and national sense. should be considered as citizens, and entitled to all the rights and privileges as such, upon taking the oaths prescribed by law. (2 ib., 943.) This section was repealed in 1828, (ch. 106.) The acts make no distinction between children born here, and those born abroad, and it is said, this shows that none existed. That if, in fact, there had been any difference, the statutes would have provided only for the latter class.

though before that event, the law in the Louisiana territory may have been such, that children born there of alien parents were aliens, (as to which I express no opinion); yet after she became a state, children born there of alien parents, would undoubtedly be citizens of the United States. And thus no clashing or incongruity could ensue, in the case of Louisiana, from the existence of the national common law rule, and the provisions of the Constitution conferring upon citizens of each State, the priv ileges of citizens in all the states.

The case of Inglis v. The Sailor's Snug Harbor, (3 Peters, 99, &c.,) was cited as having been decided on the principle of public law, that the national character of an

The general words used, do not prove that general words were necessary. The statutes were necessary, and every part of them is fulfilled, although children born here were already citizens. They operate on the much larger class of the children of aliens, viz: those who were born abroad. With a law which admits aliens to natural-infant followed the condition of his father. ization after five years residence, the children that are born to them in the five years, will usually bear but a small proportion, to the number who come with their parents from abroad. It was just as necessary in the act of 1804, to have distinguished between widows who were already citizens, and those who came here with their alien husbands. For a great many adult aliens come here single men, and marry citizens. Probably as great a proportion of the widows who are provided for in the general words of the act of 1804, are native citzens, as the proportion of the whole number of children embraced by both acts, who are born here; yet no distinction respecting widows who are citizens, is made in the act of 1804. And on this omission, the same argument urged relative to the children, will prove that all the widows of aliens must of necessity be aliens.

Upon the whole, the implication claimed from these statutes, is not a necessary one, and cannot be raised to overturn an established legal principle.

The difficulty in reference to citizens of Louisiana, where the civil law prevails, is readily answered. When the Territory of Louisiana was ceded to this country, our national law was extended over it, in all matters affecting its connection with the nation at large; and when the State of Louisiana was erected and brought into the Union; as one of the consequences of that act, she relinquished to the rule of the national law which was then in force, the fu

I do not so understand the decision. The infant in that case, was born in the city of New York, before the 4th July, 1776. He remained there with his father (who was a royalist), while the British held possession of the city. When they evacuated it, the father left the country, taking the infant with him. The latter never returned to the United States; and in process of time, became a bishop in the established church, in England, and was domiciled in Nova Scotia. The decision of the Supreme Court of the United States was, that he was born a British subject, and that he continued to be an alien in regard to this country. This, and the case next cited, together with several in the courts of the states, and some in England, hereafter mentioned, were decided upon the novel and peculiar circumstances growing out of the American Revolution, and the dismemberment of the British Empire thereby.

The doctrine settled by these authorities is, that on the separation of the colonies, the United States and Great Britain became respectively entitled, as against each other, to the allegiance of all persons who were at that time adhering to the governments respectively; and that those persons became aliens in respect to the government to which they did not adhere.

In our decisions, the time fixed for the application of the rule, is the Declaration of Independence. In the British authorities, it is applied at the date of the Treaty of Peace in 1783. (2 Kent's Comm. 2 ed.,

In Chancery-Lynch v. Clarke and Lynch.

In Shanks v. Dupont, (3 Peters, 242, a lady born in South Carolina, (whose father adhered to the United States and died in 1782,) married a British officer in Charles. ton in 1781, that city being then in posses. sion of the enemy. In 1782 she went with her husband to England, and lived there till her death, in 1801. It was held that at the treaty of Peace in 1783, she was a British subject, within the meaning of the provision of the treaty. That her removal was a voluntary dissolution of her allegiance, and it became fixed to the British Crown by the treaty of Peace. Judge Story, in his opinion, rested upon the grounds that she was not incapacitated by coverture from determining her allegiance on the Revolution in the government, and her removal and the treaty, effected a dissolution of the allegi ance to the State of South Carolina. Mr. Justice Johnson dissented, on the ground that the common law disallowed of expatriation, and it was in that respect the law of South Carolina.

60; Inglis Case, 3 Peters, 121, per Thomp-in Bishop Inglis' case, on the alienage of son, J.; Shanks v. Dupont, 3 Peters, 242; one born here before the Revolution. McIlvaine v. Coxe's Lessee, 4 Cranch 209; Kilham v. Ward, 2 Mass. 236; Gardner v. Ward, ibid 244; Phipps' case, 2 Pick., 394 note; Chapman's case, 1 Dallas, 53; Hebron v. Colchester, 5 Day. 169; Jackson ex. dem. Russell v. White, 20 Johns., 313; Doe, dem. Thomas v. Ackland, 2 Barn. and Cress, 779; Doe v. Mulcaster, 5 ibid, 771; The Providence, Stewart's Vice. Adm. Rep. 186.) On this principle, it is manifest that Bishop Inglis, who at his birth was a British subject, who never adhered to this country, and never, after he became old enough to exercise a discretion, manifested any intention to return here, was an alien in 1783, and continued to be an alien thereafter. He never owed allegiance to this state, or to the confederation. He was not a person abiding within this state on the 16th July, 1776, within the meaning of the ordinance of the convention of this state. (Jackson v. White, 20 Johns. 313, 326.) If Bishop Inglis had been born after July 4, 1776, and before the 15th of September, when the British army took possession of the city of These cases, growing out of the anomaNew York, (which was one aspect in which lous state of allegiance produced by the this case was considered,) he would have Revolution, cannot with propriety, be deemeither owed an allegiance to this state, or, ed authorities against well established prinbeing an infant, and the country in a state ciples, as applicable to the ordinary quesof revolution, his status would have been in- tions of alienage and allegiance. In the determinate until the treaty of peace, and one, the new principle applied to an unprethen controlled by the principle of his adhe- cedented case, happens to be analogous to rence to the one country or the other. As- principles which the civil law applied to all suming that he owed allegiance to New the children of foreigners. It does not, York, then the events of the Revolution therefore, follow that the Supreme Court of having rendered the application of a new the United States thought the civil law to principle necessary to his and the like cases in both countries, it would be reasonable for the courts to hold that on his attaining a suitable age to decide, he might determine for himself as to his future citizenship, and in the meantime, that his father's election should be considered as his own. Such a decision would not be an adoption of the entire doctrine of the civil law as to alienage, nor an abandonment of any of the well settled rules of the common law. It would be merely the resort to first principles in a In conclusion, I entertain no doubt but new case. No case has gone to this extent, that Julia Lynch was a citizen of the United if, as I understand the report of the facts in States when Thomas Lynch died. She Inglis v. The Sailor's Snug Harbor, the therefore inherited the property in controPlaintiff was born before the Declaration versy, if Thomas Lynch had any estate of Independence. In Trimbles v. Harrison, therein, to the entire exclusion of the com(1 B. Monroe's Law and Eq. Rep., 140, plainant, who was then an alien, and inca. 146, Kentucky,) the decision was like that pable of taking by descent.

be right, and the common law wrong, in respect to the citizenship of such children. In the other case, the common law rule as to expatriation was departed from, because the separation of the countries by a revolution, and the construction of the treaty, were supposed to require it. It does not follow that the rule of the common law was therefore abandoned in all cases of expatriation, much less in its application to citizenship by the place of nativity.