elected American citizenship in accordance with the law of the United States.

§ 259. Right of Election.

The municipal law of many countries gives to the native-born child. of foreign parents, affected with a dual nationality, a right of election of nationality upon reaching majority or within a reasonable time thereafter. Such, for example, is the law of France, Spain, Belgium, Greece, Italy, Portugal, Mexico, Chile and Costa Rica.1 This principle, which is generally recognized in international law even in the absence of express provision of municipal law, is based upon the fact that when a person becomes sui juris he cannot logically retain two nationalities, and he is required to elect between them in order that he may be bound exclusively by the one or the other. This election may be manifested in various ways. In some countries, e. g., Portugal, Italy and France, silence operates as an election of domestic nationality; in other countries, as in Spain, it is construed as an election of the foreign nationality of the parents. While there is no express provision in the law of the United States giving election of citizenship to the child born here of alien parents, it has always been held by the Department of State that if such a child is taken during minority to the country of his parents, he must, upon arriving at majority or shortly thereafter, make his election between the citizenship which is his by birth and the citizenship which is his by parentage. In case such a person should elect American citizenship he must, unless in extraordinary circumstances, in order to render his election effective, manifest

3

1 Brazilian Minister to Mr. Blaine, Sec'y of State, and Sec'y Blaine to Brazilian Minister, Dec. 2, 1890 (not sent). See also Van Dyne, op. cit., 25. For Chile, see the opinion of the Court of Appeals at Santiago printed in For. Rel., 1907, I, 124. For Portugal, see For. Rel., 1910, 834. See Appendix to Report of Citizenship Board, 1906.

2 See the cases in American courts collected by the Citizenship Board, H. Doc. 326, 59th Cong., 2nd sess., 74-76. The new German law of nationality of July 22, 1913 makes it expressly possible for an adult to possess two nationalities, supra, p. 576. A similar possibility is maintained by the Italian law of June 13, 1912, art. 7.

De Bourry's case, 2 Wharton, 401; Steinkauler's case, 15 Op. Atty. Gen. 15; Surmann's case, Mr. Olney, Sec'y of State, to Mr. Reichenau, Nov. 20, 1896, For. Rel., 1897, 182; Van Dyne, 24-31.

and carry out in good faith an intention to return with all convenient speed to the United States and assume the duties of citizenship.1

With respect to the foreign-born child of American citizens, the United States has adhered to the generally recognized principle of international law to the effect that the child upon reaching full age must elect one nationality, and repudiate the other, his election being final. This election is required to be made within a "reasonable time" after reaching majority.3 On different occasions this government has declined to extend its protection to persons who had reached the age of twenty-four, and twenty-six,5 and had failed to elect United States citizenship. While the United States requires the foreign-born citizen upon majority to expressly manifest his election of American. citizenship, the foreign-born child of Italian parents, a citizen of the country of his birth, retains his Italian nationality unless he expressly renounces it on attaining majority.

4

The United States has held that the foreign-born child of an American citizen was not competent to make an election of his nationality during minority, and that his right to claim United States citizenship upon reaching majority could not be taken from him. It was this view of the status of such a child, it seems, which led to the enactment of that provision of the Act of March 2, 1907, which requires foreignborn American children who continue to reside outside the United States, in order to receive the protection of this government, to record at an American Consulate "upon reaching the age of eighteen," their

1 Sec'y Bayard in For. Rel., 1886, 12 and 303 and For. Rel., 1887, 1131; For. Rel., 1888, I, 489 and 510.

2 Wharton, Conflict of laws, § 10; Ludlam v. Ludlam, 26 N. Y. 356; Mr. Bayard, Sec'y of State, to Mr. Pendleton, April 27, 1886, For. Rel., 1886, 327; Van Dyne, op. cit., 38. For decisions of municipal courts, see H. Doc. 326, 59th Cong., 2nd sess., 74 et seq., 79-80; also Count Wall's case, 3 Knapp P. C. Rep. 13 and Jephson v. Riera, ibid. 130.

Sec'y Bayard in For. Rel., 1886, 327; Sec'y Frelinghuysen in Klingenmeyer's case, For. Rel., 1885, 398.

For. Rel., 1886, 12; ibid. 1887, 965–967.

For. Rel., 1903, 595.

• Art. 7 of the Italian law of June 13, 1912, Parl. Pap., Cd. 6526, Misc. No. 1 (1913), p. 2.

'For. Rel., 1879, 815 and 825; ibid. 1901, 421 (Hine's case); For. Rel., 1886, 317, 327 and Van Dyne, 47 (George's case).

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.

2

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."

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.

3 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.