A difficult question exists in the common law as to the citizenship of a child of English parents, born abroad. The New York Court of Appeals has decided that such a person was a citizen on the ground that the duty of allegiance passed by descent, the child following the condition of the father, and that the question in this country is to be determined by the common law as it existed at the time of the adoption of the United States Constitution. [Ludlam v Ludlam, 26 N.Y. 356] Sir Francis Bacon, in the great case of the antenati already referred to [Calvin's Case], was a strong advocate of this opinion and accepted all its consequences. He said, " If a man shall look narrowly into this point he shall find a consequence that may seem at the first strange, but cannot well be avoided, which is, that divers families of English men and women plant themselves at Rouen or at Lisbon and have issue, and their descendants do intermarry among themselves without any intermixture of foreign blood, such descendants are naturalized to all generations, for every generation is still of liege parents and therefore naturalized, so as you may have whole tribes and lineages of English in foreign countries." [Hargrave's State Trials, 81] Sir Francis Bacon's deduction will not now readily be accepted as law. The opposing theory that persons born abroad of American parents are aliens, unless there is a naturalizing statute in their aid, is powerfully sustained by a distinguished jurist, the late Horace Binney. [2 Am. Law Reg. 193. "The Alien-igence of the United States] His proposition may be briefly summed up thus: birth here confers citizenship; birth abroad causes alienage. On this view the citizenship of the parents is of no consequence. Citizenship assumes a territorial character. The sole inquiry is who had the sovereignty over the territory where the child was born at the time of its birth?
Theodore Dwight, Edward Dwight, Commentaries on the law of persons and personal property, pg. 125 (1894)