tory Power and cannot be identified therewith by any process having general application.

(2) The native inhabitants of a mandated territory are not invested with the nationality of the Mandatory Power by reason of the protection extended to them.

(3) It is not inconsistent with (1) and (2) above that individual inhabitants of the mandated territory should voluntarily obtain naturalisation from the Mandatory Power in accordance with arrangements which it is open to such Power to make, with this object, under its own law.

(4) It is desirable that native inhabitants who receive the protection of the Mandatory Power should in each case be designated by some form of descriptive title which will specify their status under the mandate. (League of Nations Official Journal, 1923, p. 604; Hudson, Cases on International Law, p. 292.)

(The text of the Covenant of the League of Nations may be found not only in official publications, including Malloy, Treaties, Conventions, etc., vol. 3, p. 3336, but in various works relating to international law and organization, including Hudson, International Legislation, vol. I, p. 1, Fenwick, op. cit., pp. 585594, and Eagleton, International Government, pp. 613-625. For the text of article 22, see also Hudson, Cases on International Law, p. 56, and Wright, Mandates under the League of Nations, pp. 591-592. For a full discussion of mandates see Wright, op. cit. For brief discussions see the following: Eagleton, op. cit., pp. 452-454; Fenwick, op. cit., pp. 103-104, Hershey, op. cit., pp. 187-191; Hall, op. cit., pp. 158-163; 1 Oppenheim, op. cit., pp. 201-215.)

Sec. 104. For the purposes of sections 201, 402404, and 405 of this Act

The place of general abode shall be dee: the place of residence.

It is practically impossible to formulate a defi of "residence" which is generally applicable. Ass. in Corpus Juris, volume 54, pages 705-706, "reside is "an ambiguous, elastic, flexible, or relative të which, notwithstanding numerous definitions are: found in the books, is difficult of precise definition. it has no fixed meaning applicable alike to all ca but instead is used in different and various senses. has a great variety of meanings and significations. cause its meaning is variously shaded according to variant conditions of its application. Also, its me ing often depends upon the subject matter and con tion in which it is used, and the sense in which should be used is controlled by reference to the obje hence it may be given a restricted or enlarged me ing, considering the connection in which it is use Definitions of "residence" frequently include the e ment of intent as to the future place of abode. Ho ever, in section 104 hereof no mention is made of inter and the actual "place of general abode" is the sole te for determining residence. The words "place of ge eral abode," which are taken from the second par graph of section 2 of the Citizenship Act of Mar 2, 1907 (34 Stat. 1228), seem to speak for themselve They relate to the principal dwelling place of a person

(a) A person born in the United States, and subject to the jurisdiction thereof;

This subsection is to replace the provision of section 1992 of the Revised Statutes of 1878, taken from an act of April 9, 1866 (14 Stat. 27), and reading as follows:

All persons born in the United States and not subject to any foreign power excluding Indians not taxed, are declared to be citizens of the United States (8 U. S. Code, § 1).

Subsection (a), like the statute which it is to replace, is in effect a statement of the common-law rule, which has been in effect in the United States from the beginning of its existence as a sovereign state, having previously been in effect in the colonies. It accords with the provision in the fourteenth amendment to the Constitution of the United States that "all persons born

in the United States and subject to the jurisdiction thereof are citizens of the United States." The meaning of the latter was discussed by Mr. Justice Gray in United States v. Wong Kim Ark (1898), 169 U. S. 674, in which it was held that a person born in the United States of Chinese parents was born a citizen of the United States, within the meaning of the fourteenth amendment. According to this opinion, the words "subject to the jurisdiction thereof" had the effect of barring certain classes of persons, including children born in the United States to parents in the diplomatic service of foreign states and persons born in the United States to members of Indian tribes. This case related to a person born to parents who were domiciled in the United States, but, according to the reasoning of the court, which was in agreement with the decision of the Court of Chancery of New York in the year 1844 in Lynch v. Clarke, 1 Sandf., chapter 583, the same rule is also applicable to a child born in the United States of parents residing therein temporarily. In other words, it is the fact of birth within the territory and jurisdiction, and not the domicile of the parents, which determines the nationality of the child.

In considering this subsection it is important to note the statement in section 101, subsection (d) of chapter I that, "for the purposes of this act the term 'United States,' when used in a geographical sense, means the continental United States, Alaska, Hawaii, Puerto Rico, and the Virgin Islands of the United States." It will be observed that the Code in this provision assimilates to the continental United States, for purposes of

territories, Alaska and Hawaii, but also Puerto Rico and the Virgin Islands.

It may be well at this point to make special mention of the status of Alaska and Hawaii as incorporated territories of the United States, that is, part and parcel Constitution, including the provisions of the fourteenth of the United States proper, so that all provisions of the amendment concerning citizenship, are now applicable therein.

Article III of the treaty between the United States and Russia, proclaimed June 20, 1867 (2 Malloy, Treaties, Conventions, etc., p. 1521), ceding Alaska to the United States,1 provides as follows:

The inhabitants of the ceded territory, according to their choice, reserving their natural allegiance, may return to Russia within 3 years; but if they should prefer to remain in the ceded territory, they, with the exception of uncivilized native tribes, shall be admitted to the enjoyment of all the rights, advantages, and immunities of citizens of the United States, and shall be maintained and protected in the free enjoyment of their liberty, property, and religion. The uncivilized tribes will be subject to such laws and regulations as the United States may, from time to time, adopt in regard to aboriginal tribes of that country.

It will be observed that this provision gives to the inhabitants of the ceded territory, other than the uncivilized native tribes, the privilege of reserving their Russian allegiance and returning to Russia within 3 years, otherwise they "shall be admitted to the enjoyment of all rights, advantages, and immunities of citizens of the United States." In the case of Rassmussen v. United States (197 U. S. 516), the Supreme Court of the United States held that, under the treaty, impliedly observed by Congress in certain statutes, beginning with the Internal Revenue Act of July 20, 1868, Alaska was incorporated into the United States,

so that the Constitution of the United States became fully applicable. It seems to follow that the provision of article 14 of the amendments that "all persons born *** in the United States, and subject to the jurisdiction thereof are citizens of the United States" is applicable to the cases of persons born of alien parents in Alaska since its annexation. It would seem that members of the uncivilized tribes in Alaska became American nationals, but not citizens of the United States, upon the annexation. (As to the status of such persons, see also comment on subsection (b) of section 201, infra, p. 8).

For the history of the annexation of Alaska, see Farrar, V. J., The Purchase of Alaska.

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The status of persons born in Hawaii may now be considered. By virtue of a joint resolution of Congress approved July 7, 1898 (30 Stat. L. 750), relating to the acceptance of the offered cession of the Hawaiian Islands and their incorporation into the Union, the sovereignty of the Hawaiian Islands was formally transferred to the United States on August 12, 1898. On April 30, 1900, Congress enacted a law (31 Stat. 141) relating to the political status of persons who were citizens of the Republic of Hawaii on August 12, 1898. Section 4 of the act just mentioned reads in part, as follows:

That all persons who were citizens of the Republic of Hawaii on August twelfth, Eighteen hundred Ninety-Eight are hereby declared to be citizens of the United States and citizens of the territory of Hawaii.

In section 5 of the act of April 30, 1900, it is provided that the Constitution of the United States shall have the same force and effect within the Territory of Hawaii as elsewhere in the United States.

In view of the provisions of law last mentioned it is clear that persons born or naturalized in the Territory of Hawaii after its effective date are citizens of the United States under the fourteenth amendment to the Constitution. Under section 104 of this act it went into effect 45 days after its approval.

The Department of State has held that a person born in the Hawaiian Islands of alien parents after the sovereignty of such Islands was transferred to the United States on August 12, 1898, and before the enactment of the act of April 30, 1900, declaring the Constitution of the United States to be in full effect in Hawaii, is a citizen of the United States. In an opinion of January 16, 1901, 23 Op. Att'y Gen. 345), Attorney General Griggs held that a person who had been born in Hawaii of Chinese parents before August 12, 1898, and who had acquired Hawaiian nationality at birth, under the Constitution of Hawaii, was a citizen of the United States.

(b) A person born in the United States to a member of an Indian, Eskimo, Aleutian, or or other aboriginal tribe: Provided, That the granting of citizenship under this subsection shall not in any manner impair or otherwise affect the right of such person to tribal or other property;

The status, under the Constitution and laws of the United States, of members of Indian tribes in this country, prior to the passage of the several acts of Congress giving them citizenship of the United States, was discussed at length by Mr. Justice Gray, rendering the opinion of the Supreme Court of the United States on March 3, 1884, in Elk v. Wilkins (112 U. S. 94), in which it was held that a person born in the United States to members of an Indian tribe had not acquired citizenship of the United States at birth, not having

been born "subject to the jurisdiction thereof," wit the meaning of the fourteenth amendment, and had acquired citizenship through the mere fact of separ ing himself from his tribe and taking up his ab with white persons in this country. Since that decis was rendered, members of Indian tribes in the Uni States have been made citizens thereof through spe statutory provisions, including the act of Congres February 8, 1887 (24 Stat. 388); the act of March 1901 (31 Stat. 1447); the act of May 8, 1906 (34 S pt. I, 182), amending the act of February 8, 1887: act of November 6, 1919 (41 Stat. 350), and the act June 2, 1924 (43 Stat. 253, 8 U. S. Code, § 3).

The act of June 2, 1924 (supra) provides as follo All noncitizen Indians born within the territorial limit the United States be, and they are hereby, declared to be c zens of the United States: Provided, That the granting of s citizenship shall not in any manner impair or otherwise af the right of any Indian to tribal or other property.

The provision just quoted does not purport to cha the tribal relationship of Indians in the United Stat and from its phraseology it is not clear that it is applic ble to Indians born after its passage. According to opinion of the Solicitor for the Interior Departmen dated February 24, 1932, a copy of which accompan a letter of August 27, 1932, to the Department of Sta Alaskan Indians, including Eskimaus and Aleuts, w made citizens of the United States by this statutory p vision. (For a discussion of the status of membersaboriginal tribes in Alaska, see also the opinion Judge Wickersham, In re Minook, 1904, 2 Alaska R 200.)

While the act of June 2, 1924 (supra), might appe from its phraseology to be limited in its application "noncitizen Indians born within the territorial limits the United States," who were living on the effective da of the act and who by it were made "citizens of t United States," it has been construed to mean that ch dren subsequently born to Indians within the territori limits of the United States, whether or not their paren are living in tribes, acquire at birth the status of "cit zens of the United States." Subsection (b) of sectio 201 is intended to make it clear that such persons an born citizens of the United States.

(c) A person born outside the United State and its outlying possessions of parents both whom are citizens of the United States and of of whom has resided in the United States or of its outlying possessions, prior to the birth such person;

This provision is designed to replace the provision section 1 of the act of Congress of May 24, 1934, wh amended section 1993 of the Revised Statutes.

Section 1993 of the Revised Statutes, in its orig form, based upon an act of February 10, 1855, 10 St 604, reads as follows:

SEC. 1993. All children heretofore born or hereafter born out of the limits and jurisdiction of the United States, whose fathers vere or may be at the time of their birth citizens thereof, are eclared to be citizens of the United States; but the rights of itizenship shall not descend to children whose fathers never resided in the United States.

In an instruction of June 28, 1873, to Mr. Washourne, Minister to France (For. Rel. 1873, I, 256; 3 Moore, Digest of International Law 282) Secretary of State Fish expressed the view that "the Congress did ot contemplate the conferring of the full rights of itizenship upon the subject of a foreign nation who had not come within our territory, so as to interfere with the just rights of such nation to the government and control of its own subject." However, it is evident that the power of the Government of the United States to extend diplomatic protection to persons born of American parents in countries, the nationality of which they also acquired at birth (jure soli), and continuing to reside in such foreign countries, was confused with the question of American nationality itself. Mr. Fish concluded by saying that "it does not necessarily follow from this that the children of American parents born abroad may not have the rights of inheritance, and of succession to estates, although they may not reside within or ever come within the jurisdiction of the United States," thus admitting that they acquire at birth citizenship of the United States, whether or not they may be granted full protection by this Government while they remain in the other countries of which they are nationals. (As to this point, see Van Dyne, Citizenship of the United States, pp. 45-46; Opinion of Attorney General Hoar, June 12, 1869, 13 Op. Att'y Gen. 89.) It may be added that section 6 of the act of Congress of March 2, 1907 (34 Stat. 1228), assumes that such children acquire at birth the legal status of citizens of the United States. Section 1 of the act of May 24, 1934, reads as follows:

That section 1993 of the Revised Statutes is amended to read as follows:

"SEC. 1993. Any child hereafter born out of the limits and jurisdiction of the United States, whose father or mother or both at the time of the birth of such child is a citizen of the United States, is declared to be a citizen of the United States; but the rights of citizenship shall not descend to any such child unless the citizen father or citizen mother, as the case may be, has resided in the United States previous to the birth of such child. In cases where one of the parents is an alien, the right of citizenship shall not descend unless the child comes to the United States and resides therein for at least five years continuously immediately previous to his eighteenth birthday, and unless, within six months after the child's twenty-first birthday, he or she shall take an oath of allegiance to the United States of America as prescribed by the Bureau of Naturalization."

The principal object in revising section 1993 of the Revised Statutes was to remove the discrimination 130560-39-pt. 1

against women contained in it and to place American fathers and mothers upon an equal plane with regard to the transmission of citizenship to children born abroad. However, Congress seems to have realized that in extending the principle of jus sanguinis to cover cases of children born abroad to American women who had married aliens subsequent to the passage of the Cable Act of September 22, 1922 (42 Stat. 1021), or who should marry aliens after the effective date of the act in question, it would be necessary to insert limitations which do not appear in section 1993 of the Revised Statutes in its original form, that is, the requirements that the children must come to the United States and reside in this country continuously for 5 years before reaching the age of 18 and must within 6 months after attaining majority take the oath of allegiance to the United States.

The language of section 1 of the act of May 24, 1934, required construction. Taken literally, it might be construed to mean that the conditions just mentioned, relat ing to children born abroad to parents of whom one is a citizen and the other an alien, are conditions precedent to the acquisition of nationality. However, the Attorney General, in an opinion of July 21, 1934, held that these conditions are conditions subsequent and that the acquisition of citizenship of the United States does not depend upon the fulfillment of the conditions but is acquired at birth, subject to loss upon failure of the person concerned to fulfill the conditions. It will be observed that his conclusion was based principally upon the fact that under the preexisting law, section 1993 of the Revised Statutes, citizenship was conferred at birth upon children born abroad of American fathers. He appears to have felt that it was the intent of Congress in this respect to confer upon women the same privilege which had formerly been enjoyed by men rather than to deprive men of such privilege for the purpose of placing them on a par with women. However, as shown above, Congress found it necessary to add certain limitations in cases of children born abroad of one citizen and one alien parent, which did not appear in the old law.

Under these provisions, a child born abroad to an American father and an alien mother or an American mother and an alien father, although such child acquires citizenship of the United States at birth, must, in order to retain such citizenship, come to the United States before reaching the age of 13 years in order to fulfill the first of the two conditions mentioned. This means that a child still of tender years must be separated from his parents or else that his parents, or one of them, must accompany the child to the United States and reside here with him. Thus the provision in question is not only complicated but the advantages which might seem to be conferred by it are materially curtailed by the conditions mentioned.

In a case in which the citizen parent is not residing abroad to represent American interests of any kind, and especially when he or she is residing in the country of which the alien spouse is a national, there would seem to be no very strong arguments for conferring citizenship of the United States at birth upon a foreign-born child. In a case in which the citizen parent is sent abroad and continues to reside abroad to represent the Government of the United States or commercial or other interests of the United States, he might reasonably consider it a hardship that his child born abroad under these circumstances should be regarded as an alien and required to comply with the immigration laws of the United States when he comes to this country, even though such hardship would be mitigated somewhat by the fact that a citizen parent who is married to an alien and who has a child born to him in a foreign country may, if he brings such child to the United States to reside, have such child naturalized upon making the petition provided for in section 314 of the Code.

The problem of acquisition of citizenship jure sanguinis has been a subject of considerable discussion in recent years. On the one hand it has been contended, as indicated above, that section 1993 should merely be expanded, so as to confer citizenship jure sanguinis upon children of American mothers equally with children of American fathers. On the other hand it has been contended that the principle of jus sanguinis should be removed completely from the law of the United States, so that citizenship would be acquired at birth only in cases of children born within the territory and jurisdiction of the United States. (In support of jus soli as an international rule for the determination of nationality, see Scott, J. B., Nationality, Jus Soli or Jus Sanguinis, 24 American Journal of International Law (1930), p. 58.) In this connection it has even been contended that any law purporting to confer citizenship at birth upon a child born outside of the United States would be unconstitutional. However, statutes embodying this principle have been in effect in the United States many years. It may be recalled that the first statute on the subject, the act of March 26, 1790 (1 Stat. 103), was passed by the First Congress, and the lack during a period of some years of a statute. having the effect of conferring citizenship upon children born abroad to American parents was due to an error in legislative drafting (Binney, H., Alienigenae of the United States; Van Dyne, Citizenship of the United State, p. 33). It has evidently been the will of the people of the United States that, with certain

2 In Ludlam v. Ludlam, decided by the Court of Appeals of New York in 1863, 26 N. Y. 356, 84 Am. Dec. 193, it was held that the rule of nationality by descent (jus sanguinis) was a part of the common law, of which the first British statute on the subject, 25 Edw. III C. 2, was merely declaratory, and in support of this theory high British authorities were cited, but this view was questioned by Lord Cockburn in his book on Nationality (1869), ch. I. See also Lynch v. Clarke (1884, N. Y. Ch.), 1 Sandford 583.

1

limitations, children born abroad of American pare should acquire American nationality at birth, and the is nothing to indicate a change of opinion on this ject. On the contrary, the ever-increasing import of facilitating, rather than hindering, commerce foreign states furnishes a very practical argument favor of retaining in the law of the United States rule of citizenship by descent, with such limitations may seem necessary or desirable. The constitutional of a statute containing such a rule can hardly be q tioned at this late day, considering the fact that s laws have been on the statute books of the Un States for so many years, and not only applied in n berless cases by the executive branch of the Gove ment (3 Moore, International Law, 282-289) but a frequently considered and construed by the cour both Federal and State, without their constitutional being questioned (Ludlam v. Ludlam, 1863, 26 N.. 356, 84 Am. Dec. 193; Ware v. Wisner, 1883, 50 F 310, Weedin v. Chin Bow, 274 U. S. 657).

The constitutional authority for passing laws e bodying the rule of jus sanguinis has been attributed certain opinions of the Supreme Court to the pow conferred upon Congress by section 8 of article I of th Constitution to "prescribe an uniform rule of natural zation" (Minor v. Happersett, 1874, 88 U. S. 162, 16 United States v. Wong Kim Ark, 1898, 169 U. S. 6. 672, 702-703), but whether the authority is proper attributable to this express provision or is to be implie from other provisions referring to "citizens of th United States," it does not seem likely that the con stitutionality of such a law would now even be ser ously raised in the courts. There would seem to be presumption in favor of the constitutionality of law which have had such a history (Downes v. Bidwell 1900, 182 U. S. 244, 286; 12 Corpus Juris, p. 798, and cases cited. See also Willoughby on the Constitution 2d ed., vol. I, pp. 49-51, and Black on Interpretation of the Laws, 2d ed., pp. 300–306). It may be added that Attorney General Cummings, in his opinion of July 21. 1934, construing section 1 of the act of May 24, 1934. did not raise or suggest any question as to its constitutionality. It is interesting to note that it was not until the year 1866 that Congress adopted a statutory rule for the acquisition of citizenship jure soli in cases of children born in the United States, reliance having been placed theretofore upon the common-law rule. It may be noted that this statute was passed 2 years before the adoption of the fourteenth article to the Amendments of the Constitution in which it was provided 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."

The committee, while fully intending that its proposal should carry out the principle of equality be