No. 144.
Mr. Bayard
to Mr. Vignaud.
Washington , July 2, 1886.
Sir: I have received your No. 234, of the 15th ultimo, transmitting a copy of the French law of December 16, 1874, and asking for instruction in regard to the case of Victor Labroue.
Victor Labroue, according to the statement made in your dispatch, was born at Bordeaux, France, in September, 1865. His father, Ernest Labroue, was born in France in 1829, emigrated to the United States in 1853, was married in Minnesota in 1862, was naturalized in that State in 1863, and in 1864 returned to France, where he took up his residence in Bordeaux, at which place he has since then remained. You say nothing as to any intention on his part to return to the United States, and under the circumstances, as it is likely that the view most favorable to the son’s application would be stated, we may infer that he has no such intention.
The son Victor, you state, has taken the oath of allegiance before our consul at Bordeaux, declares that his domicile is Ashland, Minn., that he has always considered himself an American citizen, and has never taken any step which might involve the forfeiture of his nationality, and that it is his intention at some future time to return to his home at Ashland. He has, however, never been in the United States.
The question then arises, is he a citizen under section 1993, Revised Statutes?
This section is as follows:
Sec 1993. All children heretofore horn or hereafter born out of the limits and jurisdiction of the United States, whose fathers were, or may he 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.
In an opinion given by Mr. Hoar, Attorney-General, on June 12, 1869 (13 Op. Att’y-Gen., 89), on a state of facts similar to that now before me, we have the following:
That fact [that the father of children born abroad was at their birth a citizen of the United States] being established, the children (under and by virtue of the act of Congress of February 10, 1855, chap. 71, 10 Stat., 604), are deemed and considered, and are thereby declared to be, citizens of the United States, “provided, however, that the rights of citizenship shall not descend to persons whose fathers never resided in the United States.” If, therefore, the fathers of the applicants at the time of their birth were citizens of the United States, and had at some time resided within the United States, it is my opinion that the applicants are citizens of the United States, under the provisions of the statute, and entitled to all the privileges of citizenship which it is in the power of the United States Government to confer. Within the sovereignty and jurisdiction of this nation they are undoubtedly entitled to all the privleges of citizens.
In regard to the other branch of your inquiry, whether they are entitled, as such, to passports, my answer must be more qualified. I understand a passport to be a certificate of citizenship, and that a person receiving it is certified to be entitled to such protection as the Government can give to its citizens in foreign countries. But while the United States may by law fix or declare the conditions constituting citizens of the country within its own territorial jurisdiction, and may confer the rights of American citizens everywhere upon persons who are not rightfully subject to the authority of any foreign country or Government, it is clear that the United States cannot, by undertaking to confer the rights of citizenship upon the subjects of a foreign nation who have not come within our territory, interfere with the just rights of such nation to the government and control of its own subjects. If, therefore, by the laws of the country of their birth, children of American citizens born in that country are subjects of its Government, I do not think that it is competent to the United States, by any [Page 304] legislation, to interfere with that relation, or, by undertaking to extend to them the rights of citizens of this country, to interfere with the allegiance which they may owe to the country of their birth while they continue within its territory, or to change the relation to other foreign nations which by reason of their birth may at any time exist. The rule of the common law I understand to be that a “person born in a strange country, under the obedience of a strange prince or country, is an alien “(Co. Litt., 1286), and that every person owes allegiance to the country of his birth. I have no means of ascertaining what the law of Curaçoa may be in this respect. But if the applicants can receive any passport from your Department, it would seem that it must be a qualified one, which should state that, although they were citizens of the United States, they were only so in the qualified sense which I have indicated, reserving such rights, obligations, and duties as might attach to them under the laws of the country in which they live and in which they were born, over which the United States could have no control while their domicile continued, nor until they should come within our territorial jurisdiction.
The conclusions above stated, which I adopt, were affirmed explicitly by Mr. Frelinghuysen, in instructions to Mr. Kasson, January 15, 1885 (Foreign Relations, Germany, 1885), and impliedly by Mr. Frelinghuysen in instructions to Mr. Morton, November 9, 1883 (Foreign Relations, France).
The first question that arises is, was Ernest Labroue, the father, a citizen of the United States at the time of the birth of Victor? If Ernest Labroue had at that time abandoned his citizenship in this country, then his son can make no claim to such citizenship. At present, as there is no proof of such abandonment at the time in question, I hold the case of the son to be covered by the Revised Statutes, section 1993, above quoted, reserving the question, however, for revision on a fuller presentation of the facts.
Supposing then the son’s case to fall within the statute, can he, now residing in France (where he has always resided), claim the privileges of the statute? By the law of nations, apart from any municipal legislation, he would be entitled, when of full age, to elect which of the two allegiances he will accept, and with the law of nations in this respect coincides, according to your dispatch, the municipal law of France. But this election cannot be made by Victor Labroue until he arrives at full age in September, 1886, and the election, to be operative, must not only be formally and solemnly declared, but must be followed by his coming to and taking up his abode as soon as is practicable in the United States. Should he remain voluntarily in France after the period when the French law as well as the law of nations requires him to make his election, this may properly be regarded as an abandonment of American and an acceptance of French allegiance.
I am, &c.,