presentation, has been held not to bar the claim but to vest his interest in his legal representatives.1

§ 309. Claim Must be Continuously National in Ownership.

The conclusion is inevitable that under ordinary circumstances a claim to be considered a national claim, must be national both in origin and at the time of presentation.2 Moreover, according to the weight of authority, it must be continuously national in ownership, so that if at any time after its origin it has passed out of national hands or lost its national character, its nationality is not merely suspended but is completely destroyed, so that its reassignment to a citizen cannot revive its original nationality.3

It has already been observed that a commission usually looks to the citizenship of the real claimant and equitable owner rather than of the nominal claimant and ostensible owner.5

§ 310. Theory of Indirect Injury to the State. Criticism.

An injury to a citizen being an indirect injury to his state, it is quite apparent why the claim in its origin must accrue to a citizen, in order to receive diplomatic cognizance. It is not so clear in theory why a claim, which, having originally accrued in favor of a citizen, has passed

1 Chopin (France) v. U. S., Jan. 15, 1880, Moore's Arb. 2506; Stevenson (Gt. Brit.) v. Venezuela, Feb. 13, 1903, Ralston, 438, 455.

2 Moore's Arb. 1353; Wiltz (France) v. U. S., Jan. 15, 1880, ibid. 2254; Young (U. S.) v. Mexico, March 3, 1849, ibid. 2753 (dictum); Stevenson (Gt. Brit.) v. Venezuela, Feb. 13, 1903, Ralston, 438, 455; supra, § 306 et seq.

3 Kane's notes. . . under the convention with France, July 4, 1831, Phila. 1836, pp. 13, 21, Moore's Arb. 4471; Slocum (U. S.) v. Mexico, March 3, 1849, Moore's Arb. 2385 and Dimond (U. S.) v. Mexico, ibid. 2386 (dictum); Loehr (U. S.) v. Venezuela, Dec. 5, 1885, Opinions of the Commission, 87 (claim American in origin, sold to foreigner, and reassigned to American was barred); Treaty between Spain and Peru, Jan. 27, 1865, art. 5, Martens' Nouv. Rec. Gen. XX, 607. See contra Petit (France) v. U. S., Jan. 15, 1880, No. 255, Boutwell's Rep. 84 (claimant a French citizen when claim arose, subsequently became naturalized as an American citizen and later became redintegrated as a French citizen. The claim was allowed). See also dictum in disallowed claim of Nicrosi (France) v. U. S., ibid., No. 415, Boutwell's Rep. 87.

4 Supra, § 283 et seq.

5 The exceptions to this general rule which in some cases enabled persons not citizens to recover awards, have been noted, supra, § 295 et seq.

into the hands of an alien, should necessarily forfeit the protection of its original government, especially where it passes not by voluntary assignment but by operation of law. If the state has been injured by the original wrong done to its citizen, the mere transfer of the claim hardly seems to purge the national injury to the state. A few decisions, in fact, have accorded an administrator or executor the right to receive an award on behalf of the estate of a deceased citizen, notwithstanding the alienage of the heirs or direct beneficiaries. The weight of authority, however, is opposed to this finding. The general rule can only be explained on the ground that diplomatic protection is merely a supplementary or extraordinary legal remedy, which has no absolute sphere of operation, and may be modified in application wherever it appears reasonable.2

CONSULAR REGISTRATION OF CITIZENS

§ 311. Its Relation to Protection.

In order to facilitate diplomatic protection, and the necessary proof of citizenship upon which it depends, many governments provide for the registration in consular offices of their citizens residing abroad. France, Italy, Belgium, Spain, Portugal, Norway, and, since 1907, the United States, are among the countries which have adopted this system. The effect of consular registration is not the same in all countries, but its general purpose is to give the home government information as to the number and distribution of its citizens abroad, to furnish evidence of a desire of the citizen to retain his original nationality, and to afford an official record of his identity and political status to the consul and to the local authorities.3 Registration is in itself there

1 Supra, § 285. See the memorandum of the oral argument of the U. S. in support of this proposition in the Studer claim, No. 32, before the American and British Claims Com., Aug. 18, 1910, and the contention of the British agent in the Stevenson case v. Venezuela, Feb. 13, 1903, Ralston, 439.

2 Supra, p. 352.

3

In the case of Esteves (Spain) v. Venezuela, April 2, 1903, Ralston, 922, registration in the Spanish consulate and a certificate of registration were accepted as prima facie evidence of Spanish nationality. The same rule was applied by the Arbitrator of the Italian-Peruvian commission under the protocol of Nov. 25, 1899, Descamps and Renault, Rec. int. des traités du xx siècle, 1901, p. 701 et seq.

fore a precautionary measure of protection, and its importance in facilitating the extension of protection when a case arises will be readily apparent. It is not, however, a guarantee of protection.1

It was for some time a matter of doubt among continental publicists whether consular registration was a sine quâ non of protection, or whether it was merely recommended by the government in the citizen's own interest and optional, therefore, with the citizen himself. The difficulty appears to have been created by the French decree of November 28, 1833, which provides that "Frenchmen residing abroad, who wish to assure themselves of consular protection in the district in which they reside . . . shall have themselves inscribed, upon proof of their nationality, in the registration book kept for this purpose at each consulate." The concensus of opinion now is that registration is not an absolute condition precedent to protection, for this should depend not upon a mere administrative formality, but upon proof of citizenship. While registration, therefore, is desirable, and consuls are urged to persuade their nationals to register, it is not absolutely necessary to protection.2

Failure to register may, however, have a very important bearing on protection through its legal effect upon citizenship. Under the Act of March 2, 1907, registration is a necessary condition for the retention or resumption of American citizenship, as the case may be, on the part of foreign-born women abroad, the widows or divorced. wives of American citizens, or of native women abroad, the widows

1 Mr Knox, Sec'y of State in For. Rel., 1910, 198.

2 Pradier-Fodéré, P., Cours de droit diplomatique, 2nd ed., Paris, 1899, I, 543–548, Pradier-Fodéré, Traité, III, § 1376; De Clercq, A., and De Vallat, C., Guide pratique des consulats, 5th ed., Paris, 1898, § 330 et seq.; Pittard, E., La protection des nationaux à l'étranger, Geneva, 1896, 185-187. Failure to register may, however, have important legal effects, e. g., only a registered Frenchman may be a witness to certain instruments, or be the sole owner of a ship flying the French flag. De Clercq and De Vallat, § 331. In some countries, like Spain, the consular registration of subjects abroad affected with a dual nationality, is necessary to manifest an election of nationality. Its effect in the U. S. will be considered presently. Pradier-Fodéré states that during his experience in South America certain French consular officers made registration a condition of protection, of which practice Pradier-Fodéré unequivocally disapproves. The majority of the consular regulations of Latin-American countries expressly provide that their representatives abroad shall not refuse protection to unregistered nationals, op. cit., 547.

or divorced wives of foreigners.1 It operates also, under certain circumstances, as an election of citizenship on the part of children born abroad of American fathers.2

§ 312. Registration in Extraterritorial Countries.

Great Britain and some other countries make the registration of their subjects compulsory in certain Oriental countries in which extraterritorial rights are exercised.3 In some states, e. g., Siam, the requirement of registration is expressly mentioned in the treaty, the privileges therein granted being extended only to registered subjects.4 In other cases, it is made compulsory by Order in Council. In some states, e. g., China, non-compliance is made punishable by fine.5 Failure to register does not exempt the person from consular jurisdiction, but forfeits the right to protection. The general custom in certain countries in which extraterritorial privileges are enjoyed, of furnishing the local authorities with lists of nationals, foreigners and protégés under consular jurisdiction renders registration in some form almost a necessity and it is probable that the United States will soon follow the example of Great Britain by making registration in certain Eastern countries compulsory.6

§ 313. Proof of Citizenship Necessary. Consular Regulations.

The same proof of citizenship is required for consular registration as is required by the Department of State for the issuance of a passport. Paragraph 172 of the Consular Regulations, as amended by the Executive order of April 8, 1907, now governs the matter of registration of American citizens. It was notified to the representatives abroad of the United States by a circular of April 19, 1907. The paragraph reads: 1 These provisions, §§ 3 and 4 of the Act of 1907, have been fully considered in the discussion of the subject of married women, supra, §§ 265, 267.

2 Section 6 of the Act of March 2, 1907, supra, § 271.

3 Hall, W. E., Foreign powers and jurisdiction, § 62; Piggott, F., Exterritoriality, 163; Hinckley, Consular jurisdiction, 83. See British instructions to consular officers regulating the registration of British subjects in foreign countries, October, 1907, 100 St. Pap. 24-27.

♦ Piggott, Extraterritoriality, 163. See also treaty between Denmark and Siam, March 24, 1905, 101 St. Pap. 289.

5 British China Order, art. 162, Piggott, 164.

See Mr. Denby's despatch to Sec'y Olney, Nov. 27, 1896, For. Rel., 1896, 90.

"172. Registration of American Citizens.-Principal Consular Officers should keep at their offices a Register of all American citizens residing in their several Districts, and will therefore make it known that such a Register is kept and invite all resident Americans to cause their names to be entered therein. The same general principles govern applications for registry which govern applications for passports (Paragraph 151).

"The Register should show the date of registration, the full name of the person registered, the date and place of his birth, the place of his last domicil in the United States, the date of his arrival in the foreign country where he is residing and his place of residence therein, the reasons for his foreign residence, whether or not he is married and if married the name of his wife, her place of birth and residence, and if he has children the name, date and place of birth and residence of each. The nature of the proof accepted to establish his citizenship should also appear, and his signature should be inscribed in the Register.

"Consuls may issue certificates of the registration prescribed above for use with the authorities of the place where the person registered is residing. Each certificate shall set forth the facts contained in the Register and shall be good for use for one year only and shall be in form prescribed by the Secretary of State. (Form No.-). When a certificate expires a new one may be issued, the old one being destroyed, if it is clearly shown that the residence abroad has not assumed a permanent character. Persons who hold passports which have not expired shall not be furnished with certificates of registration, and it is strictly forbidden to furnish them to be used for travelling in the place of passports. Returns of all registrations made and of all certificates of regis tration issued shall be made to the Embassy or Legation in the country in which the Consulate is situated and to the Secretary of State at intervals and under regulations to be prescribed by him. No fee will be charged for registration nor for any service connected therewith, nor for certificates of registration.

"This Paragraph shall go into effect July 1, 1907."

After setting forth the form in which the certificate of registration shall be issued, the circular ends:

"Immediately upon the registration of an American citizen the fact of such registration should be certified to the embassy or legation in the country in which the consulate is situated, and a duplicate of the registration should be forthwith sent to this Department, together with a statement whether a certificate of registration has been issued.

"When a certificate of registration shall have expired and a new one has been issued notice of this fact should be sent immediately to the embassy or legation in the country in which the consulate is situated, and to this Department.

"American citizens resident abroad are required to register each year,