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.1 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.

'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

'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.

of municipal law, to adopt a common rule as to nationality of origin, and to regard naturalization in a second country as having the effect of superseding the allegiance due to the country of birth.1 A reasonable rule in the case of a person born with dual nationality would be, as suggested in connection with the Costa Rican treaty, that such a person should be considered a citizen of the country in which he was born if he should continue to reside there after reaching his majority.

§ 262. Absence of Nationality.

2

Even more anomalous than the position of the person possessing dual nationality is that of the person without any nationality, or Heimatlos as he is called in German. Such a condition occasionally arises at birth, but usually arises when a person loses or forfeits his original nationality, either by express or implied expatriation, and fails to acquire a new nationality. A person in this position cannot call upon the diplomatic protection of any state, and it is said that the anomalous situation of a German who by residence abroad for ten years, under the law of June 1, 1870, lost his German nationality, led to the enactment of the new law of 1913.3 The United States has seemingly lent its aid to the perpetuation of this unfortunate system by certain provisions of the Act of March 2, 1907. For example, the presumption of expatriation on the part of a naturalized citizen by a residence of two years in his native state or five years in any other state, may well leave such a person without any nationality. 1 See Cockburn, op. cit., 186, 187. The countries which are subject to heavy emigration have always resisted this admission of the right of voluntary expatriation. This is probably the principal reason why the U. S. has been unable to conclude naturalization treaties with France, Italy, Switzerland, Turkey and Russia.

4

2 See Anzilotti in 13 R. G. D. I. P. (1906), 12; Corvaia (Italy) v. Venezuela, Feb. 13, 1903, Ralston, 782. It is interesting to note that Congress by Joint Resolution of July 19, 1912 (37 Stat. L. II, 1346), unconditionally admitted to American citizenship one Eugene Prince, who was born in Russia of an American father who had never been in the U. S., and hence was not a citizen under § 1993, R. S., and who was also not recognized by Russia as a Russian subject.

3 See Meyer, Th., Reichs- u. Staatsangehörigkeitsgesetz vom 22 Juli, 1913, Berlin, 1913, Einleitung, p. 3 et seq. See also the introductions to the two leading commentaries on the new German law: Cahn, W., Reichs- u. Staatsangehörigkeitsgesetz v. 22, 7, 1913, erläutert, 4th ed., Berlin, 1914, and Keller, F., und Trautmann, P., Kommentar zum . . . Gesetz v. 22, 7, 1913, München, 1914.

4 Section 2 of the Act, 34 Stat. L. 1228.

Less justifiable, however, is the provision of § 3 according to which "any American woman who marries a foreigner shall take the nationality of her husband," apparently regardless of whether his national law so provides. Not only may this provision be unenforceable, but it may easily result in depriving a woman of American citizenship without conferring upon her any other. The rule stated by Field,' that "a person who has ceased to be a member of a nation, without having acquired another national character, is nevertheless deemed to be a member of the nation to which he last belonged, except so far as his rights and duties within its territory, or in relation to such nation, are concerned" can hardly be considered as a recognized rule of international law.

1 Field, D. D., Outlines of an international code, 2nd ed., New York, 1876, 130. See also Morse, Citizenship, 160. Art. 20 of the Introductory Law of the German Civil Code provides that in the case of persons of no nationality, the law of the last country to which they belonged is to be applied, when their national law governs a

case.

CHAPTER IV

EFFECT OF VARIOUS LEGAL RELATIONSHIPS

MARRIED WOMEN AND WIDOWS

§ 263. Effect of Marriage on Citizenship.

The effect of marriage upon the political status of women is of great importance, both in municipal and in international law. It will, therefore, be desirable to consider the status of foreign-born women married to American citizens, of American-born women married to aliens, and of widows of both these classes.

Under the municipal law of the United States, prior to the Act of Feb. 10, 1855,1 marriage had no effect upon the citizenship of a woman, either to make a foreign-born woman American,2 or an Americanborn woman foreign. This view supported the common-law doctrine as to expatriation, which prevailed in the English and American courts up to the middle of the nineteenth century, to the effect that no person can by any act of his own, without the consent of the government, change allegiance.

The civil law, on the other hand, had always held strongly to the unity of the institution of the family and the supremacy of the authority of the husband and father. Continental codes, therefore, and those of practically all civil law countries have from the be1 10 Stat. L. 604, incorporated in almost identical language in R. S., § 1994.

2 Mick v. Mick (1833), 10 Wend. 379; Priest v. Cummings (1837), 16 Wend. 617; Currin v. Finn (1846), 3 Denio, 229. See also Du Bouchet v. Award of Commissioners, 2 Knapp P. C. 364. Similarly, the husband's naturalization had no effect upon the alien wife's citizenship, whether she resided in the U. S. or not. White v. White, 2 Met. (Ky.), 185, 191; Kelly v. Harrison, 2 Johns. Cas. 29. This was the rule of the common law. Countess de Conway's case, 2 Knapp, 364, 368. See also Lord Campbell in Countess de Wall's case, 12 Jurist, 348.

'Beck v. McGillis, 9 Barb. 35; Moore v. Tisdale, 5 B. Mon. 352 cited in H. Doc. 326, 59th Cong., 2nd sess., 30, 145; Shanks v. Dupont, 3 Pet. 242, 248. Note in 22 L. R. A. 148.