No. 46.
Mr. Bayard to Mr. de Bounder de Melsbroeck.

Sir: I have the honor to acknowledge the receipt of your note of the 27th ultimo, in which you request the text of a circular supposed by you to have been issued by a former Secretary of State to the effect that “every child born upon the soil of the United States of America of alien parents, whether naturalized, or not, is by the fact of his birth to be deemed naturalized and can therefore claim the quality of a citizen of the United States,” and further request to be informed whether the doctrine so enunciated is still in force.

A very careful examination of the records of the Department fails to disclose any circular answering to the description you give.

The existing provisions of law on the subject are found—

In section 1 of the act of Congress of April 9, 1866 (now section 1992 of the Revised Statutes), which provides that—

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.

In section I of the XIVth amendment to the Constitution of the United States, proposed to the States June 16, 1866, and promulgated July 21, 1868, it is 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.

[Page 49]

I find the following statement in an instruction of Mr. Marcy, then Secretary of State, to Mr. Mason, our minister to France, dated June 6, 1854:

In reply to the inquiry which is made by you in the same letter, whether “the children of foreign parents born in the United States, but brought to the country to which the father is a subject and continuing to reside within the jurisdiction of their father’s country, are entitled to protection as citizens of the United States,” I have to observe that it is presumed that, according to the common law, any person born in the United States, unless he be born in one of the foreign legations therein, may be considered a citizen thereof until he formally renounces his citizenship. There is not, however, any United States statute containing a provision upon this subject, nor, so far as I am aware, has there been any judicial decision in regard to it.

The Attorney-General of the United States on 18th of July, 1859, gave it as his opinion that “a free white person born in this country of foreign parents is a citizen of the United States.” (Op. Attorney-General, ix, 373.)

Constitutional provisions or statutes in this relation subsequent to these dicta will of course control; and questions arising thereunder must be considered upon the facts presented in actual cases in which a ruling becomes necessary, giving due heed to the general principle that the right of election of citizenship commonly pertains to the individual himself on becoming sui juris.

Accept, etc.,

T. F. Bayard.