intention to become residents and remain citizens of the United States and "to take the oath of allegiance to the United States upon attaining their majority." 1 This provision was the result of a recommendation of the Citizenship Board,2 appointed in 1906. The recommendation, which was confined to male children, was based upon the ground that inasmuch as such children at eighteen generally become liable to military service in foreign countries, the United States might be put in the position of protecting a child of this class during the period of liability for military service, only to have him, upon attaining his majority, elect foreign nationality. It was realized that even the registration of intention would not entirely prevent such occurrences, but it was said that a young man thus violating his pledge would be "in danger of forfeiting not only his good name but the further protection of this government." 3 The Department of State first construed the statute to permit of the registration or recording of intention up to arrival at the age of nineteen. Several cases occurred, however, where the foreign-born child had failed to record his intention before reaching nineteen, and in some cases it was believed that American citizenship had thereby been forfeited. In view of the admitted incapacity of an infant to make any election in regard to his citizenship, and in view of the practical certainty that Congress did not intend to deprive of his right to elect American citizenship one who failed to make the declaration of intention, the Department on March 14, 1911 issued a circular instruction to diplomatic and consular officers stating that the declarations of intention "to become residents and remain citizens of the United States" had reference to the right of protection rather than citizenship under municipal law, and that "such declarations may be made at any time after the minors concerned have reached the age of eighteen years and before they take the oath of allegiance to the United States." This conclusion was reached by 1 Act of March 2, 1907, § 6, 34 Stat. L. 1229; Cons. Reg., parag. 138; Circular Instruction, Dept. of State, April 19, 1907, "Children of citizens born abroad," For. Rel., 1907, 9.

2 H. Doc. 326, 59th Cong., 2nd sess., 17.

3 Ibid. 17.

General Instruction, Consular, No. 16, March 14, 1911, Declaration of foreignborn children required by section 6, Act of March 2, 1907. The function of the declaration has been practically nullified by this construction.

holding that the term "upon" [reaching the age of eighteen] signified "after," for which there is some authority. This same construction supports the ruling of the Department that the oath of allegiance may be taken within a reasonable time after attaining majority.

The election of American citizenship, it has been generally held, should be evidenced by coming to the United States to live, upon reaching majority or within a reasonable time thereafter. Should the foreign-born child come to the United States a considerable time after attaining the age of majority, without having taken the oath of allegiance, he would come as an alien.1 The burden of proving an election of American citizenship falls upon the claimant thereof. Foreign nationality may be elected by silence or a mere continuation of residence abroad. Failure within a reasonable time to carry out the declaration of intention to reside in the United States would nullify the effect of the oath of allegiance as an election of American citizenship.

There are one or two interesting cases of dual nationality which may be mentioned. The child born of foreign parents on the high seas on an American vessel is probably an American citizen under our law and may also be a foreign subject jure sanguinis. Hence he would upon attaining majority have a right of election.

The Institute of International Law at its Madrid session reached the conclusion that the nationality of an aeronaut follows the country in which he has been matriculated, but that state cannot protect the airship of an alien in his national state, if the latter forbids its nationals to register their airships abroad.3

§ 260. Decisions of International Tribunals of Arbitration.

International arbitral commissions have frequently had to pass upon questions of dual allegiance. Such cases have usually arisen under

1 Albany v. Derby (1858), 30 Vermont, 718.

2 Wheaton, 8th ed., § 106; Kent's Commentaries, I, 26; Craps v. Kelly, 16 Wall. 610; McDonald v. Mallory, 77 N. Y. 546; Vattel, § 216; Nelson, H., Private international law, 47, citing Marshall v. Murgatroyd (1870), L. R., 6 Q. B. 31. See also dissenting opinion of Story, J., in Inglis v. Sailor's Snug Harbor, 3 Pet. 99, and U. S. v. Gordon, 5 Blatch. 18. There is an express provision to this effect in the 1914 British Nationality and Status of Aliens Act, § 1 (1, c.).

* 24 Annuaire (1911), 346, 314–327; 7 R. D. I. privé (1911), 846.

protocols giving the commission jurisdiction of claims of citizens of one country against the other country, and the claimant has proved to be a citizen of each of the contracting parties according to the municipal law of each.

The principle generally followed has been that a person having dual nationality cannot make one of the countries to which he owes allegiance a defendant before an international tribunal.1 In other words, a person cannot sue his own government in an international court, nor can any other government claim on his behalf. This principle was well expressed by Frazer, Commissioner for the United States, in his opinion in Alexander's case: 2

"The practice of nations in such cases is believed to be for their sovereign to leave the person who has embarrassed himself by assuming a double allegiance to the protection which he may find provided for him by the municipal laws of that other sovereign to whom he thus also owes allegiance. To treat his grievances against that other sovereign as subject of international concern would be to claim a jurisdiction paramount to that of the other nation of which he is also a subject. Complications would inevitably result, for no government would recognize the right of another to interfere thus in behalf of one whom it regarded as a subject of its own." 3

In numerous cases international tribunals have endeavored to resolve the conflict of nationalities by applying various criteria to determine which of the two nationalities could more properly be attrib

1 Alexander (Gt. Brit.) v. U. S., May 8, 1871, Moore's Arb. 2529; Boyd (Gt. Brit.) v. U. S., ibid. 2465; Martin (U. S.) v. Mexico, July 4, 1868, ibid. 2467; Lebret (France) v. U. S., Jan. 15, 1880, ibid. 2488, 2492; Maninat (France) v. Venezuela, Feb. 19, 1902, S. Doc. 533, 59th Cong., 1st sess., 44, 74; Brignone (Italy) v. Venezuela, Feb. 13, 1903, Ralston, 710, 718 (dictum). See also Drummond's case (Gt. Brit.) v. French Indemnity Commissioners, 2 Knapp's P. C. Rep. 295.

In Arata (Italy) v. Peru, Nov. 25, 1899, Descamps and Renault, Recueil int. des traités, I, 709, 711, Arbitrator Uribarri (Spain), contrary to the general rule, allowed a claim against Peru on the part of native Peruvian children of an Italian father, citizens of both countries. In Halley (Gt. Brit.) v. U. S. and Ferris (Gt. Brit.) v. U. S., May 8, 1871, Moore's Arb. 2239, the Commission (Frazer dissenting) made an award to the beneficiary (who possessed dual nationality) of an intestate who, however, was "exclusively a British subject."

2 Alexander (Gt. Brit.) v. U. S., May 8, 1871, Moore's Arb. 2531.

It has been noted (supra, p. 460) that this is the general practice of the United States and Great Britain. See also Cogordan, La Nationalité, Paris, 1890, 39, and Tchernoff, op. cit., 470.

uted to the claimant, it being admitted that without some proof or presumption of personal election the municipal law of one country could not be given superiority over the other. If, as a result of the application of these criteria, it appeared that the claimant had elected the citizenship or that he could properly be regarded as a citizen of the defendant country, the claim was dismissed for lack of jurisdiction. The criterion most frequently applied has been domicil. In resolving the conflict of nationality, preference has been given to the citizenship of the country in which the claimant had established or maintained his or her domicil. This continuation of domicil may be considered a form of election of nationality.

In case of conflict between the jus soli, where claimant has continued to reside, and the jus sanguinis, preference has almost uniformly been given to the former,2 following in this respect the diplomatic practice.

1 Lebret (France) v. U. S., Jan. 15, 1880, Moore's Arb. 2488, 2505, Opinion of Commissioner Aldis; Hammer and Brissot (U. S.) v. Venezuela, Dec. 5, 1885, ibid. 2456-2461; Stevenson (Gt. Brit.) v. Venezuela, Feb. 13, 1903, Ralston, 438, 445; Miliani (Italy) v. Venezuela, Feb. 13, 1903, ibid. 754, 761; Brignone (Italy) v. Venezuela, ibid. 710, 719; Poggioli (Italy) v. Venezuela, ibid. 847, 866; Maninat (France) v. Venezuela, Feb. 19, 1902, Sen. Doc. 533, 59th Cong., 1st sess., 44, 74; Massiani (France) v. Venezuela, ibid. 211, 224; Canevaro (Italy) v. Peru, April 25, 1910, 6 A. J. I. L. (1912), 746, decided by Hague Court of Arbitration, May 3, 1912, 8 R. D. I. privé (1912), 331, Boeck in 20 R. G. D. I. P. (1913), 317, 329, and Ernst Zitelmann in v. 3 (2nd series) of Das Werk vom Haag, München, 1914, pp. 169-247. See also Bluntschli, § 374, and article by J. Basdevant, Les conflits de nationalité dans les arbitrages vénézuéliens, 5 R. D. I. privé, 1909, 41–63, in which several of the awards of the Caracas commissions of 1903 are criticized.

2 Schreck (U. S.) v. Mexico, July 4, 1868, Moore's Arb. 2450 (dictum); Lavigne and Bister (U. S.) v. Spain, Feb. 12, 1871, 2454; Hammer and Brissot (U. S.) v. Venezuela, Dec. 5, 1885, ibid. 2456; Mathison (Gt. Brit.) v. Venezuela, Feb. 13, 1903, Ralston, 429, 436, 438; Stevenson, ibid. 438, 454. See also cases of Miliani, Brignone and Poggioli (Italy) v. Venezuela, cited above, and of Maninat and Massiani (France) v. Venezuela, ibid. The decision in Chopin (France) v. U. S., Jan. 15, 1880, Moore's Arb. 2506 appears contrary to the general rule. It may be explained, in part at least, on the ground that Oscar Chopin (the French father of children born in the U. S., to whom an award was made as French citizens) died after the ratification of the treaty of Jan. 15, 1880. See Boutwell's Report, 88. The decision is not well reasoned. See also Arata (Italy) v. Peru, Nov. 25, 1899, Descamps & Renault's Recueil, I, 709, 711, in which, contrary to the general rule, the jus sanguinis was given preference.

Apart from the implied recognition of the right of election involved in the application of the test of domicil, international tribunals have expressly recognized that a person born with dual nationality has the right, upon arrival at majority, of electing the nationality to which he desires to adhere. 1

§ 261. Measures to be Adopted to Adjust Conflicts of Nationality.

The legal and diplomatic difficulties engendered by the status known as dual allegiance will have become apparent in the course of this brief study. Attempts have been made to adjust the conflict by treaty, but only slight success has been achieved. The United States has not entered into any such treaties, leaving aside for the moment the matter of naturalization treaties. At the time when the naturalization treaty of 1911 with Costa Rica was concluded, the following paragraph was proposed:

"Children of a father, being a citizen of the United States, born in Costa Rica, shall be considered as citizens of Costa Rica during their minority, and shall preserve the same nationality after reaching the age of twenty-one years, unless at that time or within a year thereafter, they make known, either directly or through the diplomatic or consular agents of the United States resident in Costa Rica, that they wish to elect the nationality of their father.'

This principle was to apply mutatis mutandis to citizens of Costa Rica born in the United States. Such a provision is contained in existing treaties between Great Britain and Haiti, Mexico and Italy, and Spain and Salvador.

It is much to be desired that nations agree, by legislation or treaty, as they have in so many other matters in which there was a conflict

1 Scott (Gt. Brit.) v. U. S., May 8, 1871, Moore's Arb. 2528; Julio and Gaston Rabel (No. 140 and No. 236), U. S. v. Spain, Spanish Treaty Claims Commission, Act of March 2, 1901 (American-born child of foreign parents taken abroad at early age and continuing to reside abroad). See Oral Argument of Asst. Atty. Jones, May 25, 1906, v. 7 of "Briefs." Canevaro (Italy) v. Peru, April 25, 1910, Hague Court, 6 A. J. I. L. 746, 8 R. D. I. privé (1912), 331. See also Doe v. Aeklam, 2 Bar. and Cress., 779 and Auchmuty v. Mulcaster, 5 Bar. and Cress. 771.

2

In large measure, this question was the cause of the War of 1812 with Great Britain, inasmuch as Great Britain insisted upon the impressment of seamen from American vessels who were Americans under American law and British under British law.