A Compendium of the Statutory History of Jus Sanguinis

Organized by Michael David Rawlings

Chapter III, Section 1, Statute II of Session II (pg. 103 - 104) of the Naturalization Act of 1790 of the First Congress:

And the children of citizens of the United States that may be born beyond sea, or out of the limits of the United States, shall be considered as natural born citizens: Provided, That the right of citizenship shall not descend to persons whose fathers have never been resident in the United States.¹

Once Congress established natural-born citizenship via jus sanguinis in statute, the words "natural born citizen" do not appear in statute ever again. From 1790 on, persons born abroad of U.S. citizens are alternately referred to as "citizens of the United States" or simply "citizens thereof". It is understood in statute from the context, as opposed to the context applied to naturalized citizenship, that natural-born citizenship is the status conferred at the moment of birth. Hence, Section 3 of the Naturalization Act of 1795 which superceded the Act of 1790 reads:

[A]nd the children of citizens of the United States born out of the limits and jurisdiction of the United States, shall be considered as citizens of the United States. Provided, that the right of citizenship shall not descend on persons whose fathers have never been resident of the United States.

Revised Statutes Act of 1802, Section 4:

[A]nd the children of persons who now are, or have been citizens of the United States, shall, though born out of the limits and jurisdiction of the United States, be considered as citizens thereof. Provided, that the right of citizenship shall not descend on persons whose fathers have never been resident of the United States.

From 1802 to 1855, Congress suspended the conferral of citizenship at birth via jus sanguinis, whereby persons who became U.S. citizens after the statute’s effective date could not transmit their citizenship to their foreign-born children.

Though enacted on the heels of the undeclared Franco-American War (1898-1800), which was mostly fought on the high seas, the events that led up to its passage date back to 1794 when the French monarchy was toppled by the French Revolution, the success of which was mostly due to the radical leadership and persistent agitation of the Jacobineans. In order to secure a loan to fund its own revolution, the Untied States signed a treaty of alliance with the French Crown in 1778, but abandoned the treaty in 1794, insisting that it owed neither its assistance nor its debt to the Republic of France. On top of that, in the same year, the United States signed a treaty of resolution and trade with Great Britain, with which the Republic of France was at war. It was on. The French began to seize American ships trading with Great Britain.

This was also the era of the "XYZ Affair" and the Sedition Acts. Spies were thought to be everywhere. And though it was not until two years after the "war" with France had ended that Section 4 of the Revised Statutes Act of 1802 was passed (the faction in Congress that had been clamoring for its passage finally prevailing), renewed hostilities with Great Britain, which culminated in the War of 1812, coupled with the era of the Napoleonic Wars and their aftermath, which destabilized virtually all of Western Europe for two decades, conspired to cement America's isolationist mood.

But in 1855, Congress reinstated citizenship at birth via jus sanguinis, and it has continued to extend it ever since.²

Revised Statutes Act of 1855, Section 1:

All children heretofore born or hereafter born out of the limits and jurisdiction of the United States, whose fathers were or may be 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.

(Note that unlike previous statute, which required that both parents be U.S. citizens and that the father be a U.S. resident at some time or another before the child's birth, only the father had to be a citizen.)

The Revised Statutes Act of 1878 reconstituted the Revised Statutes Section 1 of 1855 as the Revised Statutes Section 1993 without any changes in the language of the provision.

The Revised Statutes Act of 1906 (effective March 2, 1907) incorporated the Revised Statutes, Section 1993 of 1878 and for the first time in history imposed additional provisos on citizens born abroad in order that they retain their citizenship via jus sanguinis as follows:

[A]ll children born outside the limits of the United States who are citizens thereof in accordance with the provisions of section nineteen hundred and ninety-three of the Revised Statutes of the United States and who continue to reside outside the United States shall, in order to receive the protection of this Government, be required upon reaching the age of eighteen years to record at an American consulate their intention to become residents and remain citizens of the United States and shall be further required to take the oath of allegiance to the United States upon attaining their majority.

Then in 1934 for the first time in history, U.S. citizenship could be transmitted to children born abroad of a citizen mother alone. Also, for the first time, a residency requirement was imposed on citizens born abroad, albeit, only on those whose mother or father was a foreign national.

The Revised Statutes, Section 1993 of the Revised Statutes Act of 1934 amending the 1855 version:

Any child hereafter born out of the limits and jurisdiction of the United States, whose father or mother or both at the time of birth of such child is a citizen of the United States, is declared to be a citizen of the United States: but the rights of citizenship shall not descend to any such child unless the citizen father or citizen mother, as the case may be, has resided in the United States previous to the birth of such child. In cases where one of the parents is an alien, the right of citizenship shall not descend unless the child comes to the United States and resides therein for at least five years continuously immediately previous to his eighteenth birthday, and unless, within six months after the child's twenty-first birthday, he or she shall take an oath of allegiance to the United States of America as prescribed by the Bureau of Naturalization.

(Note that the retention requirement imposed in 1906 on persons born abroad of U.S. citizens was dropped; that is, in the case where both of the parents of a foreign-born child were U.S. citizens, the child was required to do nothing further in order to retain his citizenship.)

In 1940, once again, both of the parents of a child born abroad had to be U.S. citizens in order for the child to be a citizen at birth and not be subject to any further requirements in order to retain his/her citizenship, but only one of the parents, the mother or the father, needed to have had a residence in the U.S. at some point of no particular period of time prior to the child's birth:

Sec. 201. [8 U.S.C. 1401] The following shall be nationals and citizens of the United States at birth: 

. . . (c) a person born outside of the United States and its outlying possessions of parents both of whom are citizens of the United States and one of whom has had a residence in the United States or one of its outlying possessions, prior to the birth of such persons. . . .

Section 201.c. (Chapter II) was reconstituted as Section 301.c. (page 284) in the Immigration and Nationality Act of 1952 with no changes and continuously reads just so in the subsequent Revised Statutes of 1972, '78 and '86 of 8 U.S.C. 1401.

 

However, a more stringent residency requirement was imposed on the citizen parent when the other was a foreign national, and the residency requirement for the citizen born abroad of only one U.S. citizen was slightly altered.

The Nationality Act of 1940, Section 201:

The following shall be nationals and citizens of the United States at birth:

(g) A person born outside the United States and its outlying possessions of parents one of whom is a citizen of the United States who, prior to the birth of such person, has had ten years' residence in the United States or one of its outlying possessions, at least five of which were after attaining the age of sixteen years, the other being an alien: Provided, That in order to retain such citizenship, the child must reside in the United States or its outlying possessions for a period or periods totaling five years between the ages of thirteen and twenty-one years: Provided further, That, if the child has not taken up a residence in the United States or its outlying possessions by the time he reaches the age of sixteen years, or if he resides abroad for such a time that it becomes impossible for him to complete the five years' residence in the United States or its outlying possessions before reaching the age of twenty-one years, his American citizenship shall thereupon cease.

(h) The foregoing provisions of subsection (g) concerning retention of citizenship shall apply to a child born abroad subsequent to May 24, 1934.

The Immigration and Nationality Act of 1952, reconstituted Section 201 as Section 301, which slightly altered the respective residency requirements again:

(a) The following shall be nationals and citizens of the United States at birth:

. . . a person born outside the geographical limits of the United States and its outlying possessions of parents one of whom is an alien, and the other a citizen of the United States, who prior to the birth of such person, was physically present in the United States or its outlying possessions for a period or periods totaling not less than ten years, at least five of which were after attaining the age of fourteen years.

. . . Any person who is a national and citizen of the United States at birth under [the  above] . . . shall lose his nationality and citizenship unless he shall come to the United States prior to attaining the age of twenty-three years and shall immediately following any such coming be continuously physically present in the United State(s) for at least five years: Provided, That such physical presence follows the attainment of the age of fourteen years and precedes the age of twenty-eight years.

The Revised Statutes Act 1972 reduced the required period of continuous U.S. residency the child must achieve between the ages of fourteen and twenty-eight in order to permanently retain his U.S. citizenship from five years to two years.

CURRENT LAW

The Revised Statutes Act of 1978 retroactively dropped "the citizenship-retention provision" to the year 1952 for persons born abroad to only one U.S. citizen parent, the other being a foreign national, provided that they were not born on or after May 24, 1934 and before October 10, 1952.  Such were no long subject to any further conditions of citizenship retention.

The Revised Statutes Act of 1986 reduced the residency requirement imposed on a U.S. citizen parent of a child born abroad, the other being a foreign national, to five years of total residency, provided that at least two of those years occurred after the citizen parent's fourteenth birthday.

(Hence, the government's official edition of the Immigration and Nationality Act of 1952 now reads the same as the Revised Statutes of 1978 and '86, respectively.)
 

Born of at least one citizen parent, there are hundreds of American citizens around the globe who have never set foot on American soil and need never do so in order to retain their citizenship for life.

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¹http://rs6.loc.gov/cgi-bin/ampage?collId=llsl&fileName=001/llsl001.db&recNum=227;

http://rs6.loc.gov/cgi-bin/ampage?collId=llsl&fileName=001/llsl001.db&recNum=226.
The second link lists the "Natural-Born Citizen Statute" of the Naturalization Act of 1790 as Statute 1, page 301, but it's actually Section 1 of Statute II, page 103 - 104.

Also see:  1802 Naturalization Act.

²The ACA link makes the parenthetical assertion that the Revised Statutes Act of 1802, Section 4 contained the "[s]ame general provisions as" those of Section 3 in the 1795 Act. Of course, that is not correct as the Act of 1802 suspended jus sanguinis proper.

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