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.

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.

3

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. 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.1 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 1 Supra, § 239.

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.

4 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.

duty. The United States recognizes the dual nationality of such children and would find it difficult to maintain a claim for their exemption from military service; indeed, the Department has stated that it may not properly be called upon to intervene in their behalf against the country in which they reside.1 The right to American protection is in such cases considered as suspended during the minority and foreign residence of the child, but it may be revived upon the attainment of the child's majority, by his carrying out an election to return to the United States. The question of election will be examined presently. The matter of protection abroad in cases of dual allegiance depends very largely upon the law of the foreign country in which the question arises, and upon the naturalization treaties which it may have concluded. Thus, in the case of countries which deny either absolutely or conditionally the right of voluntary expatriation, the American-born child of a native of such country, whether the father was naturalized or not in the United States, is subject upon his visit to such country to the obligations which native allegiance may impose upon him. 2

In countries with which the United States has concluded naturalization treaties, conflicting claims to the allegiance of sons of naturalized citizens have occasionally occurred. By the laws of the United States the minor children of naturalized citizens, upon taking up permanent residence in the United States, become citizens thereof by virtue of the parent's naturalization. The question has arisen whether by return of the father to the native country for a sufficiently long time to involve a renunciation of his American citizenship, his minor children follow his status. Notwithstanding the general rule that an infant child partakes of the nationality of his father, the United States has

3

1 Mr. Bayard, Sec'y of State, to Mr. Liebermann, July 9, 1886, Moore's Dig. III, 542; Liebmann's case, 1885; Blancafort's case, 1885; Steinkauler's case, 15 Op. Atty. Gen. 15. The ruling of the Dept. of State in Pinto's case, in which the Americanborn son of Costa Rican parents, taken back to Costa Rica when three years old, was considered apparently as an American citizen only, and not subject to dual allegiance, is exceptional. The misconception is discussed by Mr. Moore in his Digest, III, 535. 2 Gendrot's case in France, For. Rel., 1888, I, 495-499; 1899, 269-271, Moore's Dig. III, 537-539; Dubuc's case in France, For. Rel., 1910, 514-516; Reinhard's case in Switzerland, 1914.

3 Act of March 2, 1907, § 5, 34 Stat. L. 1229.

considered that the father is legally unable to deprive the child of his natural allegiance and that the child's title to American protection is merely suspended during his minority and residence abroad until, upon reaching majority, he made a definite election of nationality.1

§ 258. Foreign-born American Citizens.

According to § 1993 of the Revised Statutes "all children . . . born out of the limits and jurisdiction of the United States, whose fathers were or may be at the time of their birth citizens thereof, are declared to be citizens of the United States; but the rights of citizenship shall not descend to children whose fathers never resided in the United States."

3

When such foreign-born children of American citizens are born in a country by whose laws they become its subjects jure soli, a case of dual nationality also arises.2 While passports may be and are frequently issued to such foreign-born minors, their efficacy is qualified by the fact, unreservedly admitted, that it is not competent for the United States by its municipal legislation to interfere with the rights, obligations and duties which may attach to them under the laws of the country in which they were born and in which they continue to reside. In third countries no such limitation would apply.

1 See Pierrepont, Atty. Gen., in Steinkauler's case, 15 Op. 15 and criticism by Morse, op. cit., 104; Grimm's case, 1882. In Great Britain a more logical rule is followed. The minor child follows the status of the father, and with him, would cease to be a British subject. Within a year after attaining his majority, he may, however, make a declaration that he wishes to resume British nationality. See the recent Nationality and Status of Aliens Act, § 12 (2).

When the American-born child taken abroad at an early age returns to the United States during minority and remains here, the U. S. will resist any claim to his allegiance by the country of his father, where he resided during a part of his minority. Boisselier's case, Moore's Dig. III, 544; Revermann's case, ibid. III, 536.

2 Moore's Dig. III, §§ 426-427; Wharton, § 185; Van Dyne, Citizenship, 34 et seq. There is no uniform practice in the matter. See, however, Mr. Seward, Act'g Sec'y of State, to Mr. Foster, July 2, 1879, For. Rel., 1879, 815. Such minors may also be registered in American consulates. Mr. Rockhill to Mr. Williams, March 16, 1896, Van Dyne, 43.

Hoar, Atty. Gen., June 12, 1869, 13 Op. Atty. Gen. 89, 91; Mr. Bayard, Sec'y of State, to Mr. Vignaud, July 2, 1886, For. Rel., 1886, 303; Report of Sec'y Fish to the President, Aug. 25, 1873, For. Rel., 1873, II, 1191; Mr. Olney, Sec'y of State, to Mr. Strobel, June 4, 1896, For. Rel., 1896, 35, Moore's Dig. III, § 427; Van Dyne,

The question is frequently presented whether the foreign-born minor child of a naturalized citizen is entitled to American protection. If born prior to the naturalization of the father and never resident in this country, the child of course never became a citizen of this country. If born after the naturalization of the father, it becomes first necessary to determine whether the father had expatriated himself, at the time of the child's birth. If so, the child is born an alien, and is not entitled to American protection.1 As already observed, if the father renounced or forfeited his American citizenship subsequent to the birth of the child and acquired a new nationality, this has been held to operate not as a renunciation, but merely as a suspension of the child's right to American protection against a conflicting claim of the country of residence, notwithstanding the general rule that the minor child follows the status of the father. A passport may be issued to such a child until he attains majority, and becomes competent to elect his nationality.2 The American citizenship of such a minor may, however, be divested by his continued residence abroad after reaching the age of majority. So that, while protected as a minor, he must, in order to conserve his American citizenship and right to protection, manifest his election to assume the rights and duties of American citizenship, for upon reaching majority his citizenship is no longer derivative, but is a matter of personal election. When, therefore, the foreign-born child of an American citizen or the American-born child of foreign parents continues to reside abroad after reaching the age of majority, his right to American protection depends upon his having op. cit., 35; Cons. Reg., 1896, § 138. The English law appears to be the same. Appendix to Report of Naturalization Board Commissioners, 1869, 60, 67; Cockburn, Nationality, 108-110; For. Rel., 1873, II, 1326. See also Lavigne, No. 11, and Bister, No. 20 (U. S.) v. Spain, Feb. 12, 1871, Moore's Arb. 2454.

1 Sec'y Fish to the President, Aug. 25, 1873, For. Rel., 1873, II, 1191. See two instructions of Sec'y Frelinghuysen, 1883 and 1884 in Moore's Dig. III, 528, For. Rel., 1885, 396; Rosenheim's case, 1896, Sec'y Olney to Mr. Uhl, For. Rel., 1896, 215-220; Mr. Hay, Sec'y of State, to Mr. Tower, May 31, 1904, For. Rel., 1904, 314; Williams, Atty. Gen., in 14 Op. 295 (1873).

2 Mr. Adee, Act'g Sec'y of State, to Mr. Combs, Sept. 15, 1903, For. Rel., 1903, 595; Same to Mr. Beaupré, Aug. 30, 1904, For. Rel., 1904, 36. See also Mr. Seward to Mr. Foster, Aug. 13, 1879, For. Rel., 1879, 824, and Hine's case, For. Rel., 1901, 421. The same rule would apply to the foreign-born sons of native citizens, who become expatriated after the birth of the child. For. Rel., 1893, 401-404.