conserving its nationality, and as most states have adopted some form of the jus soli as well as some form of the jus sanguinis, these conflicts of citizenship at birth are frequent, although they are somewhat tempered by the fact that most countries admit that the child endowed with dual nationality must, upon reaching majority, make an election of citizenship.

Dual allegiance is sometimes considered to exist when a person born in one country becomes naturalized in a foreign country before the bond of original nationality has been broken. So far as the United States is concerned, to regard a duly naturalized American citizen as subject to a dual allegiance would imply a denial of the doctrine. of voluntary expatriation, as maintained by the United States. It has already been observed,1 however, that practically all the countries of Europe (except so far as they have limited their right by naturalization treaties) assert the right to determine whether and upon what conditions they will release their subjects from the bond of allegiance; 2 and while the United States contends that a duly naturalized citizen has but one nationality, it is often unable successfully to maintain its position in the country of origin or in a third country. Nevertheless, it remains true that when a person acquires a new nationality before his old one has been validly set aside and is so recognized by his original state, conflicting claims to his allegiance will arise. The new German law of nationality of 1913 apparently sanctions such conflicts by providing that a German residing in a foreign country may acquire naturalization therein without giving up his German nationality unless the laws of that country (as is the case in the United States) require the renunciation of the prior allegiance. Such a con1 Supra, p. 534.

2 The countries have been classified, supra, § 237 et seq. See also Fromageot, H., De la double nationalité, Paris, 1892, 61 et seq., and Samana, N., Contributo allo studio della doppia cittadinanza nei riguardi del movimento migratorio, Firenze, 1910.

Sec. 25, parag. 2 of the law of July 22, 1913 (R. G. Bl. 583). See R. W. Flournoy, Jr., in 8 A. J. I. L. (July, 1914), 480 and Th. Meyer, Reichs- u., Staatsangehörigkeitsgesetz vom 22 Juli, 1913, Berlin, 1913, p. 168. While residing in one country, it is presumed that such a person cannot call upon the other for protection. The power to retain German nationality applies to cases in which the German secures foreign nationality either against his will or for specific economic reasons, e. g., to own or inherit real property, etc.

flict also arises between countries in which the naturalization of the father extends to his wife and minor children, e. g., Austria-Hungary, Switzerland, Germany, Norway, Great Britain and the United States and countries which regard naturalization as of individual effect only, e. g., Argentine, Brazil, Venezuela (with limitations), Greece, Russia, and Portugal. France curiously gives a collective effect to naturalization in France and an individual effect only to naturalization of a Frenchman abroad.1 Inasmuch as international law provides no rules governing naturalization, the effect of naturalization upon previous citizenship must be left, it would seem, to the municipal law of the states concerned.2

§ 254. The Jus Soli.

The system of the jus soli has some variations. In its most absolute form it ascribes citizenship to the child born on the national territory, whatever the nationality of the parents. This principle has been adopted by the United States, Argentine, Venezuela, Chile, Bolivia, Brazil, Peru, Ecuador, Uruguay, Paraguay, Haiti and San Domingo.3 In a less rigorous form, leaving the individual free at his majority to elect the nationality of his father, Great Britain, Portugal and Mexico adhere to this system. Other countries, such as France, Denmark, Holland, Guatemala, Costa Rica and Ecuador appear to regard the individual as having ceased to be their national if at majority he was not domiciled in the territory. Some countries limit the application of the jus soli to the children of domiciled parents, e. g., Colombia and the Netherlands, and under certain limitations, France and Italy. France even provided in the law of 1889 that the father had to be born in the territory.4

1 Fromageot, op. cit., 75-77; For. Rel., 1910, 515. France has concluded with certain states, e. g., Switzerland and Belgium, treaties conferring on minors affected a right of election of nationality at majority.

2 See Oppenheim, I, 359.

Citations to constitutional and statutory provisions in Fromageot, op. cit., 27, 28 and Lehr, La nationalité, Paris, 1909. As to Latin-America, see Harmodio Arias, Nationality and naturalization in Latin-America in 11 Journ. of the Soc. of Comp. Leg. (1910), 126–142.

4 Fromageot, op. cit., 30.

255. The Jus Sanguinis.

Practically all the countries of Europe, and several of the states of Latin-America have adopted the system of the jus sanguinis.1 In some states, e. g., Bolivia, Chile, Colombia and San Domingo the application of the jus sanguinis to the foreign-born children of nationals is made dependent upon the return of the child to the mother country; in Portugal and Argentine a mere election of citizenship, and in Venezuela, of domicil, suffices. In Great Britain, the foreign-born child of a British subject may, at majority, renounce his British nationality,2 whereas in the United States, the title of a foreign-born child of American parents to American citizenship is dependent upon the prior residence of the father in the United States.3

§ 256. Methods of Avoiding Conflicts.

It is not within the province of this work to resolve the difficulties of private international law to which dual allegiance gives rise in cases in which the national law of the individual is to be applied. It may be said merely that either the lex fori or the law of the domicil is often used by municipal courts as a criterion in choosing between conflicting nationalities. Nor need we deal with the theories of some publicists, e. g., Püttlingen, Unger, Bar and Laurent, who deny the theoretical possibility of plural nationality for, however logical it may be, their theory is effectively refuted by the facts of positive law. More1 Fromageot, op. cit., 51 et seq.

233 Vict. c. 14, § 4, Declaration of alienage. This provision is retained in § 14 of the recent Nationality and Status of Aliens Act, 4 and 5 Geo. 5, ch. 17.

R. S., § 1993; Van Dyne, Citizenship, 33, 34. While the statute merely provides that "the rights of citizenship shall not descend to children whose fathers never resided in the United States," it would seem from the word "descend" that the residence must have preceded the birth of the child, and it is so construed by the Department of State.

'See Weiss, A., Traité. . . de droit international privé, 2nd ed., Paris, 1907, 304 et seq.; Fromageot, op. cit., 107-108. See also Ernö Wittmann, Conflits des lois concernant la nationalité, in 23rd Report (1906) of the International Law Asso., 211-230; Boeck in 20 R. G. D. I. P. (1913), 335-349 and Rostworowski in Annales de l'école des sciences politiques, 1898, 193.

5

Fromageot, op. cit., 16-17, with citations to the works of these writers. See also Morse, Citizenship, 103-105 and argument of Mr. Morse before Spanish Claims Commission of 1871, Moore's Arb. 2612–2613; Westlake, Private international law, 4th ed., 1905, p. 356.

over, it is admitted that municipal law has exclusive territorial but noobligatory exterritorial force, so that states with conflicting claims to the allegiance of a particular individual are, in the absence of treaty, constrained to yield to the municipal law of the state having actual jurisdiction of the person. Great Britain, in its diplomatic practice, appears to adhere firmly to what may be called the general rule that no state protects its nationals residing in the territory of another state which also lays claim to their allegiance, whether by jus soli, jus sanguinis, or naturalization.1 Within certain limitations, Germany 2 and the United States follow this practice. Several countries, either as to all matters, or as to special matters, such as military service, have concluded treaties by which the conflicts of their national law are adjusted. In the matter of naturalization, some countries such as Switzerland, Luxemburg, Norway and Sweden avoid conflicts by requiring proof of capacity to become naturalized according to the

1 See Drummond's case, 2 Knapp P. C. 295; Cockburn, op. cit., 106; Foote, J., Foreign and domestic law, 3rd ed., London, 1904, 29; For. Rel., 1907, II, 921; Fromageot, op. cit., 83–84; De Lapradelle, G., De la nationalité d'origine, Paris, 1893, 349. See Wilson v. Marryat, 8 T. R. 31, 45.

It has been observed that Great Britain by statute (Naturalization Act, 1870, § 7) declines to protect its naturalized subject against his state of origin, when the latter still claims his allegiance (supra, p. 543), although the recent British Nationality and Status of Aliens Act appears to omit such a provision. Italy does not apparently adhere strictly to the general rule. See Vicini claim v. Dominican Republic, 1914; Arata (Italy) v. Peru, Nov. 25, 1899, Descamps & Renault, Rec. int. des traités du xxe siècle, 1901, p. 709; and the correspondence between the Venezuelan government and the Italian Minister at Caracas, 1873, set out in Libro Amarillo, 1907, p. 214.

2 Koenig, B. W., Handbuch des deutschen Konsular-wesen, 7th ed., Berlin, 1910, pp. 56, 197. For practice of some other countries, see Cahn, Staatsangehörigkeit, Berlin, 1908, p. 32 a.

3 Italy does not appear to observe the general rule (e. g., Vicini claim v. Dominican Rep. and Canevaro claim v. Peru, infra, p. 589); in one noteworthy case the U. S. appears to have made an exception to its general practice. In the claim of Mrs. Groce and children v. Nicaragua, the U. S. demanded a heavy indemnity for the killing of Mr. Groce, on behalf of his native Nicaraguan widow and children, continuously there domiciled, who by Nicaraguan law were citizens of Nicaragua. For. Rel., 1909, 446.

4 Thus Spain has concluded treaties with various states of Latin-America relinquishing her claim to the allegiance of natives of those states born of Spanish subjects. Fromageot, op. cit., 97. France has concluded treaties regulating military service with Belgium and Spain. Ibid. 100, 105; Lapradelle, op. cit., 31, 363–364.

applicant's national law. Other countries, among which the United States may be included, have by naturalization treaties succeeded to a considerable degree in adjusting conflicting claims to the allegiance of a naturalized citizen.1

As already noted, dual allegiance may arise in the case of a child born in the United States of alien parents, and in the case of a child born abroad of American parents. The concurrent operation of the jus sanguinis and the jus soli upon such a child, as is often the case, serves to impose upon him dual nationality.2

§ 257. Protection Abroad in Cases of Dual Nationality.

According to the Fourteenth Amendment to the Constitution and under § 1992 of the Revised Statutes, a child born in the United States of alien parents-whether permanently or temporarily here resident, and whether themselves capable of acquiring citizenship or not-is a citizen of the United States.3 The question arises whether such a child upon his departure to and his long-continued residence in the country of his parents, which by its law considers him as its national jure sanguinis, may properly receive the protection of the United States. During minority, and in the absence of any conflicting claim to his allegiance or service by the country of his residence, the United States appears to have taken the position that in view of his incompetence to elect another nationality, he must be considered a citizen of the United States and as such entitled to the issuance of a passport. The case is quite different, however, when the country of residence demands some service from the individual so situated. Thus, it has frequently happened that children born in the United States of alien parents are taken at an early age to the latter's country of native allegiance and upon reaching the military age are called to military Supra, § 239.

1

2 Van Dyne, Citizenship, 25 et seq.; Moore's Dig. III, §§ 426–430; Wharton, II, §§ 183-185.

See cases collected in report of Citizenship Board, H. Doc. 326, 59th Cong., 2nd sess., 73-74, and especially U. S. v. Wong Kim Ark, 169 U. S. 649.

Gundlich's case, Mr. Bacon, Act'g Sec'y to Mr. Tower, Amb. to Germany, March 8, 1907, For. Rel., 1907, 516-517. Unless, however, he returns to the United States upon reaching majority, or shortly thereafter, he is considered as having elected foreign nationality, and a further passport is declined.