his expressions as to the effect of domicil and declaration of intention upon national character as dicta, inasmuch as his position in the Koszta case rested principally upon the fact that Koszta had placed himself under the protection of an American consul in Turkey, according to the recognized usage in that country. International law sanctions the right of protection thus acquired, and to this extent, the position of Mr. Marcy has had general approval.2 Much doubt, then, may be said to exist as to whether the protection extended in Koszta's case in Turkey would have been extended in any third country, as has sometimes been asserted. Moreover, it seems certain, according to Secretary Marcy's own instructions in D'Oench's and in Tousig's case,3 that such protection would not have been extended had Koszta voluntarily returned to Austria and placed himself within the jurisdiction of its municipal laws. This is simply in line with the general rule that even American naturalization will not protect a citizen on return to his native land from penalties incurred there prior to his emigration.

$ 252. Decisions of United States-Mexican Commission of 1868.

We may not leave this subject without referring to certain decisions of the United States-Mexican commission of 1868, in which proof of domicil in the United States plus a declaration of intention at the time of the origin of the claim was held a sufficient title to admission to standing before the commission as a "citizen" of the United States, provided that subsequently to the origin of the claim, the claimant has completed his naturalization.1

1

1 Sec'y Marcy to Mr. Marsh, Aug. 26, 1853, Moore's Dig. III, 835-836; Lawrence's Wheaton (2nd ed., 1863), 230.

2 Lawrence's Wheaton (2nd ed., 1863), 230; Morse, op. cit., 6, 70, 244; Calvo, cited by Morse, 70; Woolsey, cited by Hall (5th ed.), 243; Webster, op. cit., 143. See Westlake's view, I (1904 ed.), 201. Mr. Marcy's position has also been defended on the ground that Turkey's evident inability to protect Koszta against Austria's violent and unlawful aggression warranted the United States in intervening. 3 Moore's Dig. III, 838. See also Marcy's note to Baron de Kalb, July 20, 1855, ibid. 841, and Mr. Davis' instruction, May 12, 1869, ibid. 843. See also 54 St. Pap. 467 and Cockburn, op. cit., 123–124.

Jarr and Hurst (U. S.) v. Mexico, July 4, 1868, Moore's Arb. 2707, where claimants were domiciled in U. S., had declared their intention, had shipped as seamen

When Sir Edward Thornton became umpire of the commission he declined to follow the peculiar rule of these decisions, but acted upon the principle that neither a declaration of intention nor domicil, singly or together, could confer citizenship. This principle was adopted by other commissions.2

DUAL NATIONALITY

§ 253. Manner in which it Arises.

By the municipal law of the United States all persons born in this country of alien parents are citizens of the United States. This government also recognizes, as well as adopts, on its own part, the rule that children born abroad of citizens are themselves citizens of the country to which the parents owe allegiance. There arises, therefore, by reason of the concurrent operation of the jus soli and the jus sanguinis, a conflict of citizenship, spoken of usually as dual allegiance. Inasmuch as each state may determine for itself the methods for acquiring and on an American vessel, and after the injury, had completed naturalization. The decision was largely influenced, it is believed, by J. Hubley Ashton's ingenious argument, ibid. 2708. The decision may be considered dictum, as the claim was dismissed as having been previously settled. Palacio, commissioner, held that the claim to protection "should be essentially attached to [claimant's] real and actual presence" in the U. S. In Gosch (U. S.) v. Mexico, ibid. 2715, Umpire Lieber reluctantly held, following the Jarr and Hurst cases, that a son whose father made a declaration of intention when the son was sixteen, but had completed naturalization only after the son's majority, the son having lived in Mexico before he became of age and up to the date of the injury out of which the claim arose, was entitled to an award as a "citizen of the U. S." This must be considered another poor decision of Dr. Lieber, for he failed apparently to understand the limitations set by Palacio upon the Jarr decision. See also Sprotto, Assignee of Hellman, v. Mexico, ibid: 2715, 2717, and Eigendorff v. Mexico, ibid. 2717. In Schreck v. Mexico, the claim was dismissed as claimant had apparently not established his domicil in the U. S. when the claim arose, ibid. 2720. When the naturalization was not shown to have been completed, however, the claim was dismissed for lack of citizenship. Perez v. Mexico, ibid. 2718; Kern v. Mexico, ibid. 2719 and cases cited, 2720.

1 Milatovitch (U. S.) v. Mexico, No. 395, MS. Op. IV, 350-351; Wilkinson (U.S.) v. Mexico, July 4, 1868, Moore's Arb. 2720; Gros v. Mexico, ibid. 2771, 2772; Zamacona, Palacio's successor as Mexican commissioner, seems to have acted on the same principle, ibid. 2720.

2 Beales (U. S.) v. Mexico, Domestic commission, Act of March 3, 1849, Moore's Arb. 2669; Rojas (U. S.) v. Spain, Feb. 12, 1871, ibid. 2337; Wilson (U. S.) v. Chile, Aug. 7, 1892, ibid. 2553. See also as to nugatory effect on citizenship of a mere declaration of intention, supra, p. 566.

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.

3 Sec. 25, parag. 2 of the law of July 22, 1917 (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,5 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.