130–Goiran de Trans, Jean Roger
The Secretary of State to the French Chargé (Henry)
Sir: I have received your communication of February 7, 1938, requesting information concerning the citizenship status of a child born in the United States of a father who at the time of the child’s birth was a French consular officer. Specific reference is made to the fact that the American Embassy at Paris recently advised the Ministry of Foreign Affairs of France that it considered that Jean Roger Goiran de Trans, who was born in the United States of a French father who at the time was a French consular officer, acquired American citizenship at birth. It is added that the opinion expressed in the case seems to be contrary to the statement contained in Corpus Juris, Volume 11, page 780, and it is requested that you be advised of the text of the law of the United States governing the matter.
Article XIV of the Amendments to the Constitution of the United States, which is the law applicable to persons born in the United States and subject to its jurisdiction, provides in part as follows:
“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States …”
It has long been the view of the Department that under this Constitutional provision persons born in the United States of fathers who are in the employ of a foreign government other than in a diplomatic capacity are considered to be born subject to the jurisdiction of the United States and consequently acquire at birth the status of cities of the United States. Consular officers and their assistants are not considered to have a diplomatic status although, by reason of their office, they may have by law, treaty and usage, privileges not accorded [Page 350]to other aliens. It is realized, however, that there is contained in Corpus Juris the statement that “foreign born children of ambassadors and consuls are in theory born within the allegiance of the sovereign power which their father represents and hence take the nationality of the father”, but this statement so far as it concerns children born in the United States of fathers who are consuls of foreign countries is not accurate. It is based largely upon misunderstanding of the cases cited in connection with the statement or upon dicta contained in certain decisions of courts. While for a time controversy existed in the United States whether or not children born in this country of alien parents acquired United States citizenship jure soli, this uncertainty was due to a dictum in the opinion in the Slaughter-House Cases, cited in the note to the portion above quoted of Corpus Juris, in which it was said that the phrase “subject to its jurisdiction” used in Article XIV of the Amendments to the Constitution was intended to exclude from its operation “children of ministers, consuls, and citizens or subjects of foreign States, born within the United States”. This statement was a mere dictum stated in 1873. However, in the case of the United States v. Wong Kim Ark (169 U. S. 649), decided by the Supreme Court of the United States in 1898, involving the question whether or not children born in the United States of alien parents were citizens, the Supreme Court made the following statement:
“Mr. Justice Miller, indeed, while discussing the causes which led to the adoption of the Fourteenth Amendment, made this remark: ‘The phrase, “subject to its jurisdiction,” was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States, born within the United States.’ 16 Wall. 73. This was wholly aside from the question in judgment, and from the course of reasoning bearing upon that question. It was unsupported by any argument, or by any reference to authorities; and that it was not formulated with the same care and exactness, as if the case before the court had called for an exact definition of the phrase, is apparent from its classing foreign ministers and consuls together—whereas it was then well settled law, as has since been recognized in a judgment of this court in which Mr. Justice Miller concurred, that consuls, as such, and unless expressly invested with a diplomatic character in addition to their ordinary powers, are not considered as entrusted with authority to represent their sovereign in his intercourse with foreign States or to vindicate his prerogatives, or entitled by the law of nations to the privileges and immunities of ambassadors or public ministers, but are subject to the jurisdiction, civil and criminal, of the courts of the country in which they reside.”