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and not upon the Statute of Edw. III., appears from what follows, for he continues: “Yet it is without question, that if an English woman go beyond the seas, and marry an alien, and have issue born beyond the seas, the issue are aliens, for the wife was sub potestate viri.”
The opinion of Judge JENKINS was the same, as appears by the following case, put by him in his reports: “A merchant, trading in a foreign country, marries an alien there, and has issue ty her born there, this issue shall be heir to his father, although his mother was not an English woman. Otherwise of an ambassador, for the business of a merchant requires a long abode abroad, if he will not trust his whole fortune to factors; it is not so of an ambassador, it is not his profession :” 1 Jenk. Cent. case 2. This distinction between a merchant and an ambassador, and the reason given for it, show conclusively that he put the case upon the common law, and not upon the statute, because, under the statute, no such distinction could be made.
These opinions are confirmed by that of the Court of King's Bench, in the case of Bacon vs. Bacon, Cro. Car. 601. There, children born in Poland were held not to be aliens. It is true, the father and mother in that case were both English, but the court said it would make no difference, though the mother were an alien. This was not put, as I understand the case, solely upon the statute by any of the judges. As the case before them came directly within the terms of the statute, it was natural that they should refer to it. But they seem to place their decision as much upon the common law as the statute. Their language is, “he being an English merchant, and residing there for merchandising, his children shall, by the common law, or rather, as BERKELEY said, by the statute of 25 Edward III., be accounted the king's lieges, as their father is.” From this alone we might not be able to determine what the judges thought as to the common law. But they also say that it would not be material though the wife were an alien, for which they give this reason, viz., that she is “sub potestate viri, and quasi under the allegiance of the king.” This can have no reference to the statute. It is the common law argument upon the subject, and shows clearly the opinion of the judges to be that the common law went further than the statute, and denizenized the children in all cases where the father was a naturalborn subject.
I suppose the doctrine that children, if legitimate, follow in regard to their political rights and duties, the condition of their fathers, to be founded in natural law, and to be substantially the same in most if not all civilized countries. Vattel says, “ Society not being able to subsist and perpetuate itself but by the children of its citizens, those children naturally follow the condition of their fathers, and succeed to all their rights :" B. 1, ch. 19, §. 212. In a subsequent section the same author says: “It is asked whether the children born of citizens in a foreign country are citizens? The laws have decided this question in several countries, and it is necessary to follow their regulations. By the law of nature alone, children follow the condition of their fathers, and enter into all their rights. The place of birth produces no change in this particular, and cannot of itself furnish any reason for taking from a child what nature has given him. I say of itself, for the civil law or politics may order otherwise from particular views:” Id. § 215. It is shown by Vice-Chancellor SANDFORD, in Lynch vs. Clark, 1 Sandf. Ch. Rep. 583, 675, that the law of France, Spain, and Portugal, is in accordance with this doctrine, by express enactment it is true, as it is now in England and in this country. But the uniformity goes to show that it is founded upon a law of nature, and of course prevails in every country, unless, as Vattel says, it is changed by the municipal law " from particular views."
The case of Duroure vs. Jones, 4 T. R. 300, is cited in opposition to these views. The question principally discussed in that case was upon the construction of the statute of Edw. III., and not whether it was declaratory of the common law. It must be conceded, however, that the judges would seem to have assumed that it was an enabling act, and introductory of a new rule. It is also true that Blackstone and Chitty appear to have been of the same opinion. But neither the judges in that case, nor these elementary writers, appear to have discussed the question upon principle, or to have dwelt upon the authorities which have been referred to here. Indeed there was no occasion for them to do so, the question having been disposed of in England by the statute. Chancellor Kent has examined the subject with more care, and although he expresses no decided opinion upon the question which I have considered, yet it may fairly be inferred from what he says, that in his opinion children born abroad, under such circumstances as attended the birth of Maximo Ludlam, might establish their citizenship by reference to the principles of the common law, notwithstanding he speaks of those principles as “dormant and doubtful :" 2 Com. 50, 53.
The correctness of this intimation of Chancellor Kent is controverted in an able article on the subject, published in 1854, in 2 Am. Law Reg. 193, attributed to Mr. Horace Binney (Brightly's Dig. 132), which doubtless induced the passage of the Act of Congress of 1855, that act following literally its recommendations. By inducing the removal by Congress for the future, of all doubt upon a question of such importance, that article has proved useful; but if it should have the effect, in regard to antecedent cases, to establish the position with which it commences, that all the children of American families “ born in a foreign country are aliens," a vast balance of evil would be chargeable to its account. All the cases which the author cites to sustain his position have been above referred to, and after a careful examination of them, I am satisfied that they do not sustain his conclusion. Besides, he does not notice the opinion of Lord HALE in Collingwood vs. Pace, above referred to, which is directly adverse to his conclusion. If he had examined that opinion, he would not have said that the case of Rex vs. Eaton was overruled by that of Duroure vs. Jones, because, upon the ground taken by Lord Hale, the two decisions are entirely consistent with each other. The injustice and inconvenience which would often result in the division of intestates' estates, from the rule that all foreign-born children are aliens, furnish a strong argument against it, which tends to confirm the inference which I draw from the decided cases.
Such rule would not only most unjustly interrupt the course of descents, but other difficulties not less serious, would result from its adoption. Our government, in common with every other civilized government, extends its protection over its citizens when in foreign countries, whether merely journeying there, or having a permanent domicile for purposes of trade: 2 Phil. on Int. Law 4; Halleck on Int. Law, ch. 29, § 4, p. 698. It can hardly be doubted that it would protect the infant child of such citizen, though born abroad, to the same extent that it would protect the father.
Provision was made for the protection of English merchants residing abroad, by the great charter of King John. Chapters 47 and 48 are as follows: “All merchants shall have safe and secure conduct to go out of and to come into England, and to stay there, and to pass, as well by land as by water, to buy and sell by the ancient and allowed customs, without any extortion, except in time of war, or when they shall be of any nation at war with us.
“And if there shall be found any such in our land in the beginning of a war, they shall be attached, without damage to their bodies or goods, until it may be known unto us or our chief justiciary, how our merchants are treated who happen to be in the country at war with us; and if ours be safe there, theirs shall be safe in our hands." Chapter 30 of the great charter of Henry III. is to the same effect : 2 Inst. 57. Would not the persons who might be seized in England under these provisions, as hostages for the good treatment of English merchants by the hostile country, be held also as security for like treatment to the children of such merchants, though born abroad? It will hardly be questioned that protection would be thus extended.
An officer in command of one of our vessels of war was fully justified by our government in obtaining, by an exhibition of force, the surrender from an Austrian frigate of Martin Koszta, a natural-born citizen of Austria, claiming the rights of naturalization here, who had been forcibly and wrongfully seized in Smyrna, and taken on board the frigate. Can it be doubted that
the same protection would have been extended to a minor child of Koszta, if he had been seized with his father, though born in Austria ? The rule which we are asked to sanction would compel the government, in all such cases, to distinguish between father and child, extending its protection to the father, and denying it to the child.
The domicile of the minor child is always that of the father during his life (Westlake on Priv. Int. Law 35, 5 Ves. 750, 787), and I think the same rule applies in regard to citizenship; that 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; but the child, from the circumstances of his birth in a country where the father is not a citizen, may acquire rights, and be subject to duties in regard to such country, which do not attach to the father.
It does not militate against this position, that by the law of England the children of alien parents, born within the kingdom, are held to be citizens. There are many instances of double allegiance; as for instance, one may owe a natural and permanent allegiance to the country of his birth, and a local and temporary allegiance to the country in which he resides : Sherley's Case, Dyer 144 a. Other cases will be referred to hereafter. So, as I suppose, a child may be in a position which will enable him to elect, when he becomes of age, of which of two countries he will become a permanent citizen. Indeed the argument of the appellant's counsel here goes much further than that, and assumes that every adult citizen has that right. I do not apprehend that if a child, born in England of alien parents, should, before arriving at manhood, return to and become a permanent resident of the country to which his parents belonged, without any intention of ever returning to England; or of claiming any rights as a natural-born citizen of that country, he would still be claimed as a subject of the British Crown, and indictable for the crime of treason if he should take up arms against that country. Mr. Westlake says, speaking of the rule “which would impose the duty of allegiance on all those born inter quatuor maria,” “We cannot believe that