In the earlier case of Carlyle v. United States, 1872, 16 Wall., 147, 154, Mr. Justice Field laid down the controlling principle in these words:

"The rights of sovereignty," says Wildman, in his Institutes on International Law, "extend to all persons and things not privileged that are within the territory. They extend to all strangers therein, not only to those who are naturalized and to those who are domiciled therein, having taken up their abode with the intention of permanent residence, but also to those whose residence is transitory. All strangers are under the protection of the sovereign while they are within his territories, and owe a temporary allegiance in return for that protection."

By allegiance is meant the obligation of fidelity and obedience which the individual owes to the government under which he lives, or to his sovereign in return for the protection he receives. It may be an absolute and permanent obligation, or it may be a qualified and temporary one. The citizen or subject owes an absolute and permanent allegiance to his government or sovereign, or at least until, by some open and distinct act, he renounces it and becomes a citizen or subject of another government or another sovereign. The alien, whilst domiciled in the country, owes a local and temporary allegiance, which continues during the period of his residence.a

This expression is approved in Radich v. Hutchins, 1877, 95 U. S., 210. And see Yick Wo v. Hoffman, 1885, 118 U. S., 356.

These statements, while clear as to the general principle controlling, leave, however, unsettled certain other and specific questions.

In the first place, the courts have held that the law presumes that all persons who live among us are citizens until the contrary is shown. (State v. Beackmo, 1843, 6 Blackf., 488; Lister v. Wright, 1842, 2 Hill, N. Y., 320.) Consequently where a party was known to be born here, although it is not shown that his father, who was foreign born, was not an alien, and although during the party's infancy his father moved out of the country, still the party was considered a citizen. (Campbell . Wallace, 1841, 12 N. H., 362.") The same principle was applied under the treaty of peace, in connection with persons who were shown to be domiciled in America before the close of the Revolution with a continuous residence afterwards. (Moore v. Wilson, 1857, 10 Yerger, 406.) And in Molyneaux. Seymour, Fanning & Co., 1860, 30 Ga., 440, 441, Lumpkin, J., said:

All persons who are found within the limits of government, whether their residence be permanent or temporary, are to be deemed, so far, citizens or subjects thereof, as that the right or jurisdiction, civil or criminal, will attach to such persons.

Moreover, one alleging the alienage of a party must prove it. State v. Haynes, 1880, 54 Ia., 169.

Another principle has, however, been laid down by the cases that where the original status of a party in an action is shown, this is presumed to continue if there be no evidence of the denaturaliza

a See for an elaborate discussion of the rights of aliens as affected by treaties, Rixner's Succession, 1896, 32 L. R. A., 177, and note.

Of course, under our present statutes, the party having been born in the United States was a citizen by birth, and unless it was shown that he had at the time of coming of age elected to consider himself a subject or citizen of the country to which his father had migrated, he would still be considered an American citizen.

tion or naturalization. In Hauenstein v. Lynham, 1879, 100 U. S., 483, 484, Mr. Justice Swayne expressed this principle thus:

There is no proof that he denationalized himself or ceased to be a citizen and subject of Switzerland. His original citizenship is, therefore, to be presumed to have continued.a

».

And see also Hogan v. Kurtz, 1876, 94 U. S., 773; City of Minneapolis. Reum, 1893, 56 Fed., 576; Bode v. Trimmer, 1890, 82 Cal., 512, 517; Miller . Prentice, 1889, 82 Cal., 104; id., 575 (moreover the party in this last case swore that he had been naturalized and had lost his papers); Belcher . Farren, 1891, 89 Cal., 73; White v. White, 1859, 2 Met. (Ky.), 185.

The fact of long-continued residence should, of course, make no difference on this question, and it has been so held. Jackson v. Wright, 1809, 4 Wend., 75 (ten years' residence). The principle has also been applied where a naturalized or native-born American citizen has denaturalized himself and then has returned to the United States. In such case the courts have held that the party had acquired an alien citizenship and continued to be an alien although subsequently returning to and residing in this country. (Green's Son. Salas, 1887, 31 Fed., 106, citing and relying on Hauenstein v. Lynham, supra; Alsberry . Hawkins, 1839, 9 Dana, 177.) Another interesting case in which the doctrine was applied is State v. Salge, 1865, 1 Nev., 455, 458, where the defendant called in question the alienage of one of the jurors before whom he was to be tried. It appears that the juror in question

was born in the province of Canada, and lived there until he was 24 years of age. He had been told that his father was a citizen of the United States prior to removing to Canada, which was before his (the juror's) birth, and that he never had any knowledge that his father became a citizen of Canada. He also stated that he did not know of which country his father claimed citizenship; that his residence and home was in Canada so long as he knew anything about it, and that he (the juror) had never been naturalized as a citizen of the United States.

The defendant's challenge of the juror was allowed.

Where, as in Miller v. Prentice, supra, a change of allegiance is alleged this, of course, must be established as any other fact. (Jones e. McMasters, 1857, 20 How., 8, 20.)

A number of cases have come up involving the principle stated in Jackson . Wright, supra, the fact of long-continued residence, among which are three that arose just after the Revolution. In one the alien whose citizenship was being considered had resided in New York as a prisoner of war from September, 1776, to January, 1777. It was urged that this made him a citizen of that Commonwealth, but the court found to the contrary. (Jackson v. White, 1822, 20 Johns., 313.) Two years after, in the second case, the question came up as to whether or not continuous residence after the Revolution by a soldier of Burgoyne's army made him a citizen, and the court found that it did (Commington v. Springfield, 1824, 2 Pick., 394); and a similar result was reached where the party in question had been a deserter from the British army; see note to Commington . Spring

a Chief Justice Marshall in Blight v. Rochester, 1822, 7 Wheaton, 535, expressed the same idea, though the citizenship particularly before him seems to have been State and not national.

H. Doc. 326, 59-2-4

field. It seems that in neither of these cases was the result reached on an interpretation of the treaty. In People v. Riley, 1860, 15 Cal., 48, the court of that State declared that residence and service as a soldier were not sufficient to confer citizenship.

The courts have consistently held also that residence in a foreign country by a naturalized American has no effect upon such person's citizenship. The question came up under a rather remarkable state of facts in Young v. Peck, 1839, 21 Wend., 389. It appeared in this case that the party in question was the daughter of one who after her birth became a naturalized American citizen. She was born abroad, in Scotland, in 1769; she lived abroad until 1830. She married in Scotland (probably before she became of age) a British subject with whom she lived until his death, when she came to America. The court held that neither her residence nor her marriage had any effect on her citizenship within the act of 1802. This case was affirmed on appeal to the court of errors in 26 Wend., 613. For an application of the same principle see Ware v. Wisner, 1883, 50 Fed., 310; State v. Adams, 1876, 45 Iowa, 99; Beck v. McGillis, 1850, 9 Barb., 35. See also, generally, Brown v. United States, 1869, 5 Court of Claims, 571, 575; Murray . McCarty, 1811, 2 Munf., 393, 397.

A number of interesting cases have arisen touching the point. whether or not one residing in this country before the Revolution became an alien by either fleeing the country on the outbreak of the war or by taking refuge with the British army. In Inglis v. Sailors' Snug Harbor, 1830, 3 Pet., 99, 120, Chief Justice Marshall said:

The settled doctrine of this country is, that a person born here, who left the country before the Declaration of Independence and never returned here, became thereby an alien, and incapable of taking lands, subsequently, by descent, in this country.

Accordingly, it was held that where the defendant, born in the colony of New York in 1760, of Irish parents, went to Ireland to be educated in 1771, was educated and served his apprenticeship there, and returned to the United States in 1795, he was held not to be a citizen. (Hollingsworth v. Duane, 1801, Wall. C. C., 51. And see Trimbles v. Harrison, 1840, 1 B. Mon., 140.) In Coxe v. Gulick, 1829, 5 Halstead (N. J.), 328, an opposite result was reached. The principle itself was well stated in United States v. Gillies, 1815, 1 Pet. C. C., 159, 161, where Washington, J., said:

It is true that a man may obtain a foreign domicil which will impress upon him a national character for commercial purposes, and may expose his property found upon the ocean to all the consequences of his new character in like manner as if he were in fact a subject of the government under which he resides. But he does not on this account lose his original character or cease to be a subject or citizen of the country where he was born and to which his perpetual allegiance is due.

The principle was somewhat more fully stated in the earlier case of The Venus, 1814, 8 Cranch, 253, 280, where Chief Justice Marshall laid down the doctrine as follows:

But this national character which a man acquires by residence may be thrown off at pleasure by a return to his native country, or even by turning his back on the country in which he has resided on his way to another. To use the language of Sir W. Scott, it is an adventitious character gained by residence and which ceases by nonresidence. It no longer adheres to the party from the moment he puts himself in motion, bona fide, to quit the country sine animo revertendi. The Indian Chief, 3 Rob., 12, 17. The reasonableness of this

rule can hardly be disputed. Having once acquired a national character, by residence in a foreign country, he ought to be bound by all the consequences of it until he has thrown it off, either by an actual return to his native country or to that where he was naturalized, or by commencing his removal, bona fide and without an intention of returning. If anything short of actual removal be admitted to work a change in the national character acquired by residence, it seems perfectly reasonable that the evidence of a bona fide intention to remove should be such as to leave no doubt of its sincerity. Mere declarations of such an intention ought never to be relied upon when contradicted, or, at least, rendered doubtful by a continuance of that residence which impressed the character. They may have been made to deceive; or, if sincerely made, they may never be executed. Even the party himself ought not to be bound by them, because he may afterwards find reason to change his determination, and ought to be permitted to do so. But when he accompanies those declarations by acts which speak a language not to be mistaken and can hardly fail to be consummated by actual removal, the strongest evidence is afforded, which the nature of such a case can furnish."

But the courts seem universally to have drawn a clear distinction between citizenship and this sort of domicile. As to the character of the domicile which a merchant acquires who resides and trades in a foreign country, see The Friendschaft, 1818, 3 Wheat., 13, 52; The Frances, 1814, 8 Cranch, 335. Of course, if, in addition to acquiring this domicile, the party also takes an oath of allegiance to the sovereign of the country in which he resides, he is, while residing in that country, a subject of the same, and is not entitled to the protection of his first government and is entitled to the commercial privileges of his second. See the Charming Betsy, 1804, 2 Cranch, 64; Stoughton . Taylor, 2 Paine C. C., 655, 661. As will be pointed out more fully later, the foreign domicile of an American citizen has no effect upon the citizenship not only of himself, but of his children, and that even though they may be children by an alien mother. Ludlam v. Ludlam, 1860, 31 Barb., 486.

The domiciliary status received a number of important adjudications in connection with our Chinese exclusion acts. It seems to have been well settled, under the earlier statutes, that a Chinaman who had acquired a domicile in this country and then went to his native country on a temporary visit stood, on his reseeking entry into this country, on a different basis from one entering for the first time. In re Ah Ping, 1885, 23 Fed., 329; Lau Ow Bew . United States, 1892, 144 U. S., 47. But the more stringent statutes passed since that time have been interpreted to mean that this right may be withdrawn by Congress. See Chinese Exclusion case, 1888, 130 U. S., 581; Lem Moon Sing v. United States, 1895, 158 U. S., 538; In re Tom Mun, 1888, 47 Fed., 722; In re Chew Heong (1884), 10 Sawy., 361. That a party entering this country after having acquired a previous domicile stood on a different footing from a new

a The question of domicile thus raised can not be covered in this report. It seems sometimes to have been treated as if it were citizenship. (See the remarks of Story, J., in The Dos Hemanos, 1817, 2 Wheat., 78, 96, in which he used this language:

In respect to the domicil of Mr. Green there is certainly much reason to doubt if it would be sufficient to protect him, even if he could show himself at the time of the capture a citizen of Carthagena, for if upon his return to New Orleans after the war he acquired a domicil there (of which the circumstances of his becoming the owner of a privateer in that port affords a strong presumption) he became a redintegrated American citizen, and he could not by an emigration afterwards, flagrante bello, acquire a neutral character so as to separate himself from that of his native country."

emigrant was also decided in the case of In re Pangara, 1892, 51 Fed., 275.

Cases have also held that the domicile of the origin is not lost with long residence abroad, even where there is doubt that the party had any fixed intention of returning. White v. Brown, 1848, 1 Wall. Jr., 217. But see Ex Parte Blumer, 1865, 27 Tex., 734.

PART I.-CITIZENSHIP BY BIRTH.

CHAPTER I. CHILDREN BORN WITHIN THE TERRITORY OF THE UNITED STATES.

SECTION 1.--Of inhabitants not aliens.

A. Indians.-In discussing the question of citizenship of the Indians, it seems advisable first to treat somewhat at length of their status generally and of their amenability to Federal and State law, because their position seems to be entirely unique, and unless this is in mind the ruling of the courts on matters of pure citizenship seem out of harmony with the general law on this subject.

The Constitution of the United States contains two references to Indians. Article I, section 2, in providing for the distribution of Representatives and direct taxes, excludes "Indians not taxed." Article I, section 8, provides that Congress should have power to regulate commerce "with the Indian tribes." But in neither place is the relationship which is to exist between the Indians and the Government of the United States or the Indians and the government of the States defined.

From the earliest periods our Government has to a greater or less extent treated them as separate nations, and treaties have been the normal method of regulating our relationships with them.

The question of the status of the Indians was brought before our Supreme Court at a comparatively early date in the great case of the Cherokee Nation . Georgia, 1831, 5 Pet., 1. The immediate question to be determined was whether or not the Cherokee Nation was a foreign state in the sense which that term is used in that clause of the Constitution, Article III, section 2, which provides that the judicial power shall extend to controversies between a State and foreign states. The opinion was delivered by Marshall, Chief Justice, in the course of which he used the following language:

Is the Cherokee Nation a foreign state, in the sense in which that term is used in the Constitution? The counsel for the plaintiffs have maintained the affirmative of this proposition with great earnestness and ability. So much of the argument as was intended to prove the character of the Cherokees as a state, as a distinct political society, separated from others, capable of managing its own affairs and governing itself, has, in the opinion of a majority of the judges, been completely successful. They have been uniformly treated as a state from the settlement of our country. The numerous treaties made with them by the United States recognize them as a people capable of maintaining the relations of peace and war, of being responsible in their political character for any violation of their engagements, or for any aggression committed on the citizens of the United States by any individual of their community. Laws have been enacted in the spirit of these treaties. The acts of our Government plainly recognize the Cherokee Nation as a state, and the courts are bound by those acts.

A question of much more difficulty remains. Do the Cherokees constitute a foreign state in the sense of the Constitution? The counsel have shown conclusively that they are not a State of the Union, and have insisted that, indi