STATUS OF PERSONS BORN IN THE UNITED STATES OF ALIEN PARENTS AND OF FOREIGN-BORN PERSONS NATURALIZED IN THIS COUNTRY

DEPARTMENT OF STATE,
Washington, June 9, 1915.

MY DEAR SENATOR LODGE: I have received your letter of June 5, 1915, in reply to my letter of June 2, concerning the detention in Italy for military service of Ugo Da Prato, who was born in Boston August 25, 1895, and went to Italy in 1912 to study architecture, and whose father, Antonio Da Prato, a native of Italy, obtained naturalization as a citizen of this country in the District Court of the United States at Boston March 19, 1892-that is, before the son's birth. Accompanying your letter are the birth certificate of Ugo Da Prato and the naturalization certificate of his father.

The department has telegraphed to the American Ambassador at Rome, directing him to call the attention of the Italian Government to the facts mentioned above, ask for the immediate release of Ugo Da Prato, and report the result. As Ugo Da Prato was born in this country after his father had obtained naturalization as a citizen of the United States, it does not appear that he can be considered an Italian subject under Italian law, and I have no doubt that he will be released. I shall be glad to inform you of the ambassador's report.

In the department's letter of June 2 you were asked to forward not only the birth certificate of Ugo Da Prato, but the naturalization certificate of his father, and in this connection the following statement was made:

"The department is being called upon to take action in a good many cases similar to that of Ugo Da Prato. The Italian law concerning naturalization of Italians in foreign countries is peculiar. Article 11 of the Italian Civil Code contains the following provision:

666

"ART. 11. Citizenship is lost by the following persons:

"1. * * *

"2. He who has acquired citizenship in a foreign country.' "Article 12, however, reads as follows:

"ART. 12. The loss of citizenship in the cases mentioned in the foregoing article does not work exemption from the obligations of the military service, nor from the penalties imposed on those who bear arms against their country.

"Under the provisions of law mentioned the Italian Government recognizes the naturalization of Italians as citizens of other countries, but holds them liable for military service in Italy unless they have been expressly excused therefrom. In view of article 11, persons born in this country of fathers naturalized before their births are not considered Italian subjects or held liable for military service in Italy. It is very important that in each case of this kind the department should be furnished with the best documentary evidence procurable of the naturalization of the father and the subsequent birth in this country of the son, so that necessary assurances may be given to the Italian Government."

In your letter under acknowledgment you make the following observations: "I note what you say in regard to the Italian law, which obviously does not apply to young Da Prato, but, speaking generally, I can not assent for a moment to the proposition that such a thing as dual citizenship is possible. As you well know, we constituted ourselves as champions against the doctrine of indefeasible allegiance and have succeeded in compelling the acceptance of our view by all the nations with the exception, I think, of Russia and Turkey. The abandonment of indefeasible allegiance is in itself the establishment of the principle that there can be no such thing as dual citizenship, either in whole or in part, and to attempt to retain the right over a boy born in this country of parents not naturalized-which is not the case with Da Prato-for military service in the country of origin of the parents is absurd on its face and is something to which we should never assent for a moment."

After making some observations concerning the provsiion of the German law of nationality of June 1, 1914, according to which Germans who obtain naturalization as citizens of other countries may, under certain conditions, retain their German nationality, and after observing that any alien who endeavors to retain his original allegiance when he takes an oath of allegiance to the United States and becomes naturalized as a citizen of this country commits perjury, you say: "Italy * * * has no possible claim on the children of Italian parents, not naturalized, born in this country, especially if they have exercised all the rights of citizenship as they are entitled to do under the Fourteenth Amendment to the Constitution. Such a child has never been an Italian subject for one minute. Italy has not more claim on him than she on one of my children or one of yours.

I believe that there is also something similar to this in French law. We shall find ourselves in a very awkward position with our large body of naturalized citizens and their children if we do not take the strongest position against article 12 of the Italian Civil Code which you quote.'

The argument contained in your letter is similar to that in an article which appeared in the June number of the Metropolitan Magazine, in reference to the department's letter of April 2 to Mr. P. A. LeLong, jr., of Louisiana, concerning his citizenship. In the department's letter to Mr. LeLong his attention was called to the fact that, although having been born in this country, he was an American citizen under American law, it appeared that he was also born a French citizen under French law, because of the fact that his father was a French citizen. The department therefore observed that he appeared to have been born with “a dual nationality."

As this general subject has been the cause of considerable comment, I venture to discuss the matter at some length.

Dual nationality is not a theory or doctrine promulgated by the department, but is the unavoidable result of the conflicting laws of different countries. Under the American law of nationality, which is derived from the English law, American nationality is based primarily upon the fact of birth within American territory and jurisdiction, under what is known as the jus soli, whereas in the countries of continental Europe nationality is acquired primarily through descent, under the jus sanguinis. This follows naturally from the basis of jurisdiction, which in the common law is the locus and in the civil law the persona. The Revised Statutes of the United States, however, contain the following provision in section 1993 (act of February 10, 1855):

"All children heretofore born or hereafter born out of the limits and jurisdiction of the United States, whose fathers were or may be at the time of their birth citizens thereof, are declared to be citizens of the United States; but the rights of citizenship shall not descend to children whose fathers never resided in the United States.'

A provision substantially similar to the above was added to the original British law of nationality. Also the laws of some, although not all, countries of continental Europe contain provisions under which nationality is required, under certain conditions, through birth within their territory. The status of a person who is a born citizen of one country under the jus soli and a citizen of another country under the jus sanguinis is commonly termed "dual nationality." Whether or not this term is considered apt, the fact remains that many persons are born citizens or subjects of two countries under their respective laws. Thus, a person born in Italy of American parents is born a citizen of the United States, provided his father has resided in this country, but, under certain conditions, he may also be considered an Italian subject. Also, a person born in the United States of Italian parents is born a citizen of the United States under the law of this country, and a subject of Italy under the law of Italy.

The fact of dual nationality has been recognized by the department for many years. Secretary of State Fish, in a report to the President dated August 25, 1875, said:

"The child born of alien parents in the United States is held to be a citizen thereof and to be subject to duties with regard to this country which do not attach to the father.

"The same principle on which such children are held by us to be citizens of the United States, and to be subject to duties to this country, applies to the children of American fathers born without the jurisdiction of the United States, and entitles the country within whose jurisdiction they are born to claim them as citizens and to subject them to duties to it.

"Such children are born to a double character: The citizenship of the father is that of the child so far as the laws of the country of which the father is a citizen are concerned and within the jurisdiction of that country; but the child, from the circumstances of his birth, may acquire rights and owes another fealty besides that which attaches to the father." (Moore's International Law Digest, Vol. III, p. 520.)

I desire to call your attention to the following statement in the report of the Citizenship Board which was appointed during the administration of President Roosevelt "to inquire into the laws and practice regarding citizenship of the United States, expatriation, and protection abroad, and to report recommendations for legislation to be laid before Congress," which report was forwarded to

nes rectioned in the foregoing pasi me military service, Ast their country."

be a Government recognizes = Ther rountries, but holds ther cave been expressly excused there Country of fathers naturali seets or held liable for milits

e case of this kind the depa :mentary evidence procurable of the Lesce, est birth in this country of the so egmen to the Italian Government." snowledgment you make the following observations: and to the Italian law, which obviously does not but, speaking generally, I can not assent for a moment such a thing as dual citizenship is possible. As you well urselves as champions against the doctrine of indefeasible

eded in compelling the acceptance of our view by all ception, I think, of Russia and Turkey. The abandonegance is in itself the establishment of the principle that ing as dual citizenship, either in whole or in part, and to het over a boy born in this country of parents not natue case with Da Prato-for military service in the country 1 absurd on its face and is something to which we should

ra moment.

me observations concerning the provsiion of the German law June 1, 1914, according to which Germans who obtain naturali25 of other countries may, under certain conditions, retain their Latonality, and after observing that any shien who endeavors to retain :al allegiance when he takes an oath of allegiance to the United States omes naturalized as a citizen of this country commits perjury, you say: has no possible claim on the children of Italian parent itay Brazed, born in this country, especially if they have exercised tizenship as they are entitled to do under the Fourteen!

Constitution. Such a child has never been an Itali
Italy has not more claim on bm then she on one

believe that there is also something similar to this in French law. We shall nd ourselves in a very awkward position with our large body of naturalized tizens and their children if we do not take the strongest position against article 2 of the Italian Civil Code which you quote."

The argument contained in your letter is similar to that in an article which ppeared in the June number of the Metropolitan Magazine, in reference to the epartment's letter of April 2 to Mr. P. A. LeLong, jr., of Louisiana, concerning is citizenship. In the department's letter to Mr. LeLong his attention was alled to the fact that, although having been born in this country, he was an merican citizen under American law, it appeared that he was also born a French itizen under French law, because of the fact that his father was a French citizen. The department therefore observed that he appeared to have been born with "a ual nationality."

As this general subject has been the cause of considerable comment, I venture o discuss the matter at some length.

Dual nationality is not a theory or doctrine promulgated by the department, out is the unavoidable result of the conflicting laws of different countries. Under he American law of nationality, which is derived from the English law, Amerian nationality is based primarily upon the fact of birth within American terriory and jurisdiction, under what is known as the jus soli, whereas in the counries of continental Europe nationality is acquired primarily through descent, under the jus sanguinis. This follows naturally from the basis of jurisdiction, which in the common law is the locus and in the civil law the persona. The Revised Statutes of the United States, however, contain the following provision in section 1993 (act of February 10, 1855):

"All children heretofore born or hereafter born out of the limits and jurisdiction of the United States, whose fathers were or may be at the time of their birth citizens thereof, are declared to be citizens of the United States; but the rights of citizenship shall not descend to children whose fathers never resided in the United States.'

A provision substantially similar to the above was added to the original British law of nationality. Also the laws of some, although not all, countries of continental Europe contain provisions under which nationality is required, under certain conditions, through birth within their territory. The status of a person who is a born citizen of one country under the jus soli and a citizen of another country under the jus sanguinis is commonly termed "dual nationality." Whether or not this term is considered apt, the fact remains that many persons are born citizens or subjects of two countries under their respective laws. Thus, a person born in Italy of American parents is born a citizen of the United States, provided his father has resided in this country, but, under certain conditions, he may also be considered an Italian subject. Also, a person born in the United States of Italian parents is born a citizen of the United States under the law of this country, and a subject of Italy under the law of Italy.

The fact of dual nationality has been recognized by the department for many years. Secretary of State Fish, in a report to the President dated August 25, 1875, said:

"The child born of alien parents in the United States is held to be a citizen thereof and to be subject to duties with regard to this country which do not dtattach to the father.

tance of or

and Turke

"The same principle on which such children are held by us to be citizens of the United States, and to be subject to duties to this country, applies to the children of American fathers born without the jurisdiction of the United States, and Ar entitles the country within whose jurisdiction they are born to claim them as

citizens and to subject them to duties to it.

"Such children are born to a double character: The citizenship of the father is that of the child so far as the laws of the country of which the father is a citizen are concerned and within the jurisdiction of that country; but the child, from the circumstances of his bi acquire rights and owes another fealty besides 's International Law Digest, Vol.

the Speaker of the House of Representatives by Secretary of State Elihu Root, with a letter of approval and commendation, dated December 18, 1906:

"Inasmuch as our Government declares that all persons born in the United States are citizens of the United States, and also recognizes, as well as adopts, on its own part the rule that children of citizens resident abroad are citizens of the country to which the parents owe allegiance, there arises, as will be seen, a conflict of citizenship, spoken of usually as dual allegiance." (H. Doc. No. 326, 59th Cong., 2d sess., p. 74.)

A full discussion of the subject of dual allegiance may be found in Moore's Digest of International Law, Volume III, pages 518-551.

For the reasons mentioned above it is obviously important for the department, in dealing with the case of a person who was born in this country and had a father of Italian birth, to ascertain whether his father had previously acquired naturalization as a citizen of the United States. This is especially important when it is a case such as that which you have presented-of a person who has not yet reached his majority. The extent to which this Government may go, and the arguments which it may use, in the actual protection of persons who were born in the United States of alien fathers and who may be molested while temporarily visiting the countries of origin of the latter must necessarily depend upon the particular facts and circumstances of each case. In no case, in the absence of conventional arrangements, can the department assure such persons in advance that they will not be held liable, under the laws of other countries concerned, for the performance of military or other public service attaching to citizenship. In the department's letter of May 5 to Mr. P. A. LeLong, jr., the following statement was made:

"If at any time in the future you should find it necessary to visit France and should there be molested upon the ground that you are a French citizen, you should inform a diplomatic or consular officer of the United States, who would report the matter to the department in order that it might take such measures in your behalf as would seem warranted by the peculiar facts and circumstances of your case.'

The department, having advised American citizens generally "to avoid visiting unnecessarily countries which are at war," did not encourage Mr. LeLong to choose the present time to make an unnecessary test of his political position in France.

The cases of persons born in the United States of alien parents should not be confused with the cases of persons born abroad who have obtained naturalization as citizens of this country. In the former cases the department recognizes now, as it always has heretofore, that the persons concerned are born with a dual nationality. In the latter cases the department does not recognize the existence of dual nationality in view of the fact that persons who obtain naturalization as citizens of this country are required to renounce their original allegiance.

While this Government holds that naturalized American citizens can not rightfully be called upon to perform military or other obligations which had not actually accrued before their emigration, the department has always deemed it advisable to call the attention of naturalized Italians to the position in which they will be placed in case they voluntarily return to Italy. During and since the administration of President Roosevelt the Department of State has accordingly issued a circular warning them to this effect, entitled: "Notice to American citizens formerly subjects of Italy who contemplate returning to that country," which contains the following statement:

"Naturalization of an Italian subject in a foreign country without consent of the Italian Government is no bar to liability to military service."

Similar circulars have been issued during and since the administration of President Roosevelt calling attention to the status in their native lands of naturalized citizens of the United States born in France and other European countries. In the circular concerning naturalized Germans attention is called. to the fact that naturalization of such persons in this country is recognized by the German Government under the treaties concluded with the German States

in 1868, commonly known as the "Bancroft Treaties." In this connection I may say that the United States has concluded naturalization treaties with the following countries of Europe besides Germany: Austria-Hungary, Belgium, Denmark, Great Britain, Norway, Sweden, and Portugal.

With reference to your remarks concerning the status of Germans who acquire naturalization in this country, and particularly to the provision of the new German law of nationality according to which German allegiance may be retained, under certain conditions, by Germans naturalized abroad, I may say