those who are born within the extent of the dominion of France,' and 'mere birth within the realm gives the rights of a native-born citizen, independently of the origin of the father or mother, and of their domicil'; and 'children born in a foreign country, of a French father who had not established his domicil there nor given up the intention of returning,' were also deemed Frenchmen, as Laurent says, by 'a favor, a sort of fiction' and Calvo, 'by a sort of fiction of exterritoriality, considered as born in France, and therefore invested with French nationality.'

931

"The foregoing considerations and authorities irresistibly lead us to these conclusions: The Fourteenth Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children here born of resident aliens, with the exceptions or qualifications (as old as the rule itself) of children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory, and with the single additional exception of children of members of the Indian tribes owing direct allegiance to their several tribes. The Amendment, in clear words and in manifest intent, includes the children born within the territory of the United States, of all other persons, of whatever race or color, domiciled within the United States. His allegiance to the United States is direct and immediate, and, although but local and temporary, continuing only so long as he remains within our territory, is yet, in the words of Lord Coke, in Calvin's Case, 7 Rep. 6a, 'strong enough to make a natural subject, for if he hath issue here, that issue is a natural born subject,' and his child, as said by Mr. Binney in his essay before quoted, 'if born in the country, is as much a citizen as the natural-born child of a citizen, and by operation of the same principle.' . . .

"Chinese persons, born out of the United States, remaining subjects of the Emperor of China, and not having become citizens of the United States, are entitled to the protection of and owe allegiance to the United States, so long as they are 51 Pothier Traite des Personnes, pt. 1, tit. 2, sect. I, nos. 43, 45.

permitted by the United States to reside here; and are ‘subject to the jurisdiction thereof,' in the same sense as all other aliens residing in the United States. . .

"Upon the facts agreed in this case, the American citizenship which Wong Kim Ark acquired by birth within the United States has not been lost or taken away by anything happening since his birth.'

9932

From this opinion and the authorities cited in it it appears that the alien owes a double allegiance, to the country of his birth and that of his domicil, and that he is entitled to the protection of both until he renounces one or the other. His allegiance to his native country is of a political character. He is not personally subject to its jurisdiction and will not be delivered up by the country of his domicil on the demand of that of his birth except for an extraditable offense committed in that country. Political offenses do not afford grounds for extradition. If his sovereign calls the alien home for military duty, he is legally bound to go, but will not be forced to do so by the country of his adoption. He may renounce his allegiance if he sees fit to do so, but whatever property he has in the country of his birth is subject to its laws, and if he returns to it he subjects himself to its jurisdiction for any disobedience of its laws while in foreign countries.

Nowhere else are the principles above declared of so much importance as in the United States, the citizenship of which is so largely made up of alien born people and their descendants born in this country. Though in the early years of the republic there was some controversy with European powers over questions of expatriation and naturalization, it now has satisfactory treaties with most of the nations removing the grounds of controversy. The exclusion of Asiatic laborers has caused complaints from China and Japan, but amicable adjustments of the limitations of their rights to migrate to this country have thus far been accomplished by treaties. Race prejudices and antipathies are hard to overcome. There is

52 United States v. Wong Kim Ark, 169 U. S. 649.

53 Stat. 33 and 34 Vict. c. 52, § 3. In re Munier 2 Q. B. 415. In re Ezeta, 62 Fed. 972.

little of these left in the United States as to the Europeans, of the blood of all nations of whom we now have so many citizens, but with the Asiatics there is as yet very little intermixture. With rapidly increasing acquaintance friendly feeling grows, but it is hardly to be expected that Orientals will be soon regarded with the same feeling as the Europeans with whom we are allied by blood.

CHAPTER II

INTERNATIONAL LAW

DAWN OF INTERNATIONAL LAW

Out of the feudal system of the middle ages, as a natural outgrowth, came kingdoms, personified in their sovereigns, to whom all subjects owed fealty as the source of title to all the land in the state. The saying of Louis XIV "I am the state" fairly expressed the prevailing theory of national responsibility. In all dealings with other powers, whether in peace or in war, the king spoke for his country. The discovery of America and of the ocean route to the far east excited rivalry among the maritime countries for distant trade and possessions. Governments became more firmly established, population increased, and ships multiplied on the seas. Nations had more frequent intercourse with each other, and rules governing such intercourse came to be regarded as necessary. The rudiments of a common law of nations were generally accepted by the leading states, though not uniformly observed. The only sanction of the law was such as was imposed by the ruler on his own subjects. The Popes sometimes used their influence and spiritual weapons to mitigate the barbarities of war, but were too often more concerned with the interests of the church than in restraining the savagery of war.

The first comprehensive work on international law was that of Hugo de Groot, better known by the Latinized name of Grotius, entitled De Jure Belli et Pacis, published in 1625. It is a most scholarly work and shows great familiarity with Greek and Roman history and the reasoning of their statesmen and philosophers. While the great purpose actuating his effort was the advancement of moral standards, he dealt with an existing, not an ideal, world, and based his statements concerning the laws on the rules actually observed. Like the Roman scholars he sought for the Lex naturae as a moral

basis for human law. He says "That there is such a thing. as natural law is commonly proved both a priori and a posteriori; the former the more subtle, the latter the more popular proof. It is proved a priori by shewing the agreement or disagreement of anything with the rational and social nature of man. It is proved a posteriori by certain or very probable accounts we find of anything accepted as natural law among all nations, or at least the more civilized. For a universal effect requires a universal cause; now such a universal belief can hardly have any cause except the common sense of mankind."

In the slow and spasmodic evolution of law it is not surprising that international law should be a later development than the civil law of states. It is so of necessity, for the idea of the collective personality of the nation must be well developed and recognized before moral and legal accountability as such can be attributed to it.

The extreme doctrine of individual liberty has been applied to nations and those who have exercised sovereign authority in them, in quite as full measure as individual liberty is asserted in the savage tribes which acknowledge no law or authority. The doctrine that the king can do no wrong, though not maintained as sound ethics, has prevailed because there was no adequate force within or without the state to judge, restrain or punish him. Not only philosophers but all normal people recognize the applicability of the moral law to the relation of states to each other with the same force as it applies to the relations of natural persons. The difficulty has been, and still is, to agree on methods of ascertaining the general consensus of opinion as to the principles of the natural law, the moral law, and to establish instruments to apply and enforce them. There is the same need of restraints over the conduct of nations as over that of natural persons. They are actuated by similar passions and motives of interest and advantage. Perhaps the ultimate goal to be reached is a condition in which national personality will disappear, and all men be guided by accepted principles of human relations, but 1 De Jure, Book 1, Ch. 1, XII.